Summary Judgment Reversed | FORECLOSURE FRAUD | by DinSFLA

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Wroblewski v. AMERICAN HOME MORTGAGE SERVICING, INC. – FL 5DCA Reverses SJ for failure to comply with the condition precedent contained in the mortgage, requiring notice and opportunity to cure

Wroblewski v. AMERICAN HOME MORTGAGE SERVICING, INC. – FL 5DCA Reverses SJ for failure to comply with the condition precedent contained in the mortgage, requiring notice and opportunity to cure


MICHELLE WROBLEWSKI, Appellant,
v.
AMERICAN HOME MORTGAGE SERVICING, INC., Appellee.

Case No. 5D10-1068.
District Court of Appeal of Florida, Fifth District.

Opinion filed September 9, 2011.
Tanner Andrews of Tanner Andrews, P.A., Deland, for Appellant.

Michael Cavendish and Ana D. Johnson of Gunster, Yoakley & Stewart, P.A., Jacksonville, for Appellee.

PER CURIAM.

We reverse the summary judgment of foreclosure because Appellee failed to overcome Appellant’s assertion in her answer that Appellee had failed to comply with the condition precedent contained in the mortgage, requiring notice and opportunity to cure. Morrison v. U.S. Bank, N.A., 36 Fla. L. Weekly D1646 (Fla. 5th DCA July 29, 2011); Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011).

REVERSED and REMANDED.

GRIFFIN, MONACO and TORPY, JJ., concur.

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WACHOVIA BANK OF DELAWARE v. JACKSON | Ohio Appeals Court SJ Reversed “Noriko Colston Affidavit, Uncertified Recorded Copies of Public Records”

WACHOVIA BANK OF DELAWARE v. JACKSON | Ohio Appeals Court SJ Reversed “Noriko Colston Affidavit, Uncertified Recorded Copies of Public Records”


COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT


WACHOVIA BANK OF DELAWARE, NA

-vs-

IRENE P. JACKSON

EXCERPT:

{¶14} In her first assignment of error, appellant asserts her affidavit in opposition to the motion for summary judgment challenged Wachovia’s allegation it was the holder of the note and mortgage. Appellant’s affidavit states she had been unable to verify that Wachovia Bank of Delaware was authorized to do business in the State of Ohio. She also alleged the affidavit Wachovia submitted in support of its motion for summary judgment was signed by an assistant secretary for a fourth entity claiming power of attorney for the plaintiff and was not sufficient to prove Wachovia is the proper party.

[…]

{¶24} Wachovia’s affidavit to which appellant refers was signed by Noriko Colston, who identified herself as an assistant secretary of Barclay’s Capital Real  Stark County, Case No. 2010-CA-00291 Estate, Inc., dba HomEq Servicing, as attorney in fact for Wachovia Bank of Delaware. The affidavit recites Wachovia Bank of Delaware was formerly known as First Union National Bank of Delaware, formerly known as First Union Home Equity Bank, N.A., and is the successor in interest to First Union Home Equity Corporation. Colston’s affidavit asserts she has personal knowledge of all the facts contained in the affidavit and is competent to testify. Colston’s affidavit states the copies of the note and mortgage attached to the pleadings are true and accurate copies of the original instruments, but the documents are not attached to the affidavit itself. Colston’s affidavit states Wachovia has exercised its option to accelerate and call due the entire principal balance. Colston’s affidavit states she has examined and has personal knowledge of the appellant’s loan account, which is in default. Finally the affidavit lists the amount due.

[…]

{¶28} Colston’s affidavit identifies the mortgage and the note as accurate copies of the originals, but does not identify any other documents Wachovia submitted to the trial court. Her affidavit states she has examined appellant’s loan account. It does not identify the account as a business record, kept in the regular course of business, nor does it state the records were compiled at or near the occurrence of each event by Stark County, Case No. 2010-CA-00291 persons with knowledge of said events. Colston’s affidavit asserts she has personal knowledge of all the facts contained in her affidavit, but she merely alleges she is an assistant secretary of Barclay’s, without elaborating on how her position with the company relates to or makes her familiar with the appellant’s account records.

[…]

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OHIO JUDGMENT REVERSED FULL Payoff Rejected, Broken Entry (2), FDIC, as Receiver of WAMU v. TRAVERSARI

OHIO JUDGMENT REVERSED FULL Payoff Rejected, Broken Entry (2), FDIC, as Receiver of WAMU v. TRAVERSARI


Don’t you just love it when links and posts go missing for absolutely NO reason whatsoever!

REPOST-

Fed. Deposit Ins. Corp., as Receiver of WAMU v. TRAVERSARI, 2010 Ohio 2406 – Ohio: Court of Appeals, 11th Dist., Geauga 2010
dinsfla | June 5, 2010 at 9:49 am |

2010-Ohio-2406

Federal Deposit Insurance Corporation, as Receiver of Washington Mutual Bank, Plaintiff-Appellee,
v.
Robert Traversari, et al., Defendants-Appellants.
No. 2008-G-2859.

Court of Appeals of Ohio, Eleventh District, Geauga County.

May 28, 2010.

Karen L. Giffen and Kathleen A. Nitschke, Giffen & Kaminski, L.L.C., 1300 East Ninth Street, #1600, Cleveland, OH 44114 and Donald Swartz, Lerner, Sampson & Rothfuss, P.O. Box 580, Cincinnati, OH 45210-5480 (For Plaintiff-Appellee).

Edward T. Brice, Newman & Brice, L.P.A., 214 East Park Street, Chardon, OH 44024 (For Defendants-Appellants).

OPINION
COLLEEN MARY O’TOOLE, J.

{¶1} Appellants, Robert Traversari (“Traversari”) and B & B Partners (“B & B”), appeal from the August 5, 2008 judgment entry of the Geauga County Court of Common Pleas, granting summary judgment in favor of appellee, Washington Mutual Bank, and entitling appellee to a judgment and decree in foreclosure.

{¶2} In 1994, appellant Traversari borrowed $190,000 from Loan America Financial Corporation which was memorialized by a promissory note and further secured by a mortgage on property located at 9050 Lake-in-the-Woods Trail, Bainbridge Township, Geauga County, Ohio. Appellant Traversari obtained the loan individually and/or in his capacity as the sole member and principal of appellant B & B, a real estate based company. The mortgage at issue was subsequently assigned to appellee.

{¶3} On January 8, 2007, appellee filed a complaint in foreclosure against appellants and defendants, JP Morgan Chase Bank, N.A., Charter One Bank, N.A., Jesse Doe, and Geauga County Treasurer. In count one of its complaint, appellee alleges that it is the holder and owner of a note in which appellant Traversari owes $149,919.96 plus interest at the rate of 7.75 percent per year from September 1, 2006, plus costs. In count two of its complaint, appellee alleges that it is the holder of a mortgage, given to secure payment of the note, which constitutes a valid first lien upon the real estate at issue. Appellee maintains that because the conditions of defeasance have been broken, it is entitled to have the mortgage foreclosed. Appellee indicated that appellant B & B may have claimed an interest in the property by virtue of being a current titleholder.

{¶4} Appellants filed an answer and counterclaim on February 16, 2007. In their defense, appellants maintain that appellee failed to comply with Civ.R. 10(D) and is estopped from asserting a foreclosure by its waiver of accepting payment. According to their counterclaim, appellants allege the following: on or about September 25, 2006, appellant Traversari sent a check in the amount of $150,889.96 to appellee for payment in full on the loan, which included the principal of $149.919.96 plus $970 of interest; on or about November 17, 2006, appellee issued a new home loan statement to appellant Traversari indicating the amount due was $5,608.95; appellant Traversari contacted appellee stating that a check had been sent for payment in full; appellee failed to respond; appellant Traversari mailed a check to appellee in the amount of $155,000; no stop payment was issued on the first check; because the house was vacant, appellant Traversari went to check the residence on December 26, 2006, and discovered that it had been broken into; an orange placard was placed on the premises indicating that a representative from appellee would secure the home; appellant Traversari immediately purchased new lock sets, secured the premises, and called and left a message for appellee to inform them to not enter the home; on December 31, 2006, electronic transmission was sent to appellee concerning the break-in and requested appellee to stop breaking into the home as well as to locate the two checks and to send a copy of a letter to a credit bureau; appellee did not respond; appellant Traversari then mailed a check from a separate account in the amount of the last payment demanded by appellee; appellee sent the $155,000 check back with a form letter to the address of the vacant property stating that personal checks were not accepted for payoff; appellee also rejected the $5,674.41 check; appellant Traversari then contacted appellee regarding the rejected checks; on January 11, 2007, appellant Traversari went to the home again, finding the kitchen door open, furnace running, new lock set taken out, garage door openers unplugged, and worse dings in the steel door; and appellant Traversari emailed appellee again, however, appellee indicated it could not give appellants any information because the case had been moved to foreclosure.

{¶5} Appellee filed a reply to appellants’ counterclaim on March 19, 2007, and an amended reply on September 6, 2007.

{¶6} According to the deposition of Maritza Torres (“Torres”), an employee of appellee in its senior asset recovery, loss prevention department, she was assigned to appellants’ case. Torres testified that appellee has no record of having received a check in the amount of $150,889.96 from appellant Traversari on September 25, 2006. However, she indicated that appellee received a check from appellant Traversari on September 30, 2006, in the amount of $102,538.74 (“Check #1?), which was returned to him due to appellee’s policy not to accept checks for early payoffs that are not certified funds.

{¶7} According to the deposition of Linda Rae Traversari (“Linda”), appellant Traversari’s wife, she is the handler of the family assets. Following the return of Check #1, appellee forwarded a delinquency letter to appellant Traversari in early November of 2006. Later that month, appellee sent a second default letter to him. Linda testified that on or around November 30, 2006, appellant Traversari sent another personal check for early payoff to appellee in the amount of $155,000 (“Check #2?). Appellee returned Check #2 with a letter explaining that noncertified funds are not accepted for early payoff. Linda stated that on January 2, 2007, appellant Traversari sent a third personal check via certified mail to appellee in the amount of $5,674.41 (“Check #3?). By the time appellee received Check #3, the loan had been referred to foreclosure. Check #3 was returned to appellant Traversari as “insufficient.”

{¶8} On March 14, 2008, appellee filed a motion for summary judgment pursuant to Civ.R. 56(b). Appellants filed a response on April 21, 2008.

{¶9} In its July 3, 2008 order, the trial court found, inter alia, that appellee was within its legal rights to reject the personal checks; appellee had the right to institute and maintain the foreclosure because appellants did not cure their default; and appellee had the right to enter the premises. Thus, the trial court indicated that appellee’s motion for summary judgment would be granted in its favor as to all issues and claims against appellants upon appellee’s presentation of an appropriate entry to be provided to the court.

{¶10} Appellee filed a “Motion For Submission Of Its Entry Granting Motion For Summary Judgment And Decree In Foreclosure” on July 11, 2008, and an amended entry on July 21, 2008. Appellants filed objections to appellee’s proposed amended entry the following day.

{¶11} Pursuant to its August 5, 2008 “Amended Entry Granting Summary Judgment And Decree In Foreclosure,” the trial court granted summary judgment in favor of appellee, entitling appellee to a judgment and decree in foreclosure. The trial court ordered, inter alia, that unless the sums found due to appellee are fully paid within 3 days from the date of the decree, the equity of redemption shall be foreclosed, the property sold, and an order of sale issued to the Sheriff directing him to appraise, advertise, and sell the property. The trial court further ordered that the proceeds of the sale follow the following order of priority: (1) to the Clerk of Courts, the costs of the action, including the fees of appraisers; (2) to the County Treasurer, the taxes and assessments, due and payable as of the date of transfer of the property after Sheriff’s Sale; (3) to appellee, the sum of $149,919.96, with interest at the rate of 7.75 percent per annum from September 1, 2006 to February 29, 2008, and 7.25 percent per annum from March 1, 2008 to present, together with advances for taxes, insurance, and costs; and (4) the balance of the sale proceeds, if any, shall be paid by the Sheriff to the Clerk of Court to await further orders. It is from that judgment that appellants filed the instant appeal, raising the following assignment of error for our review:

{¶12} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTSA-PPELLANTS IN ITS ORDER GRANTING IN PLAINTIFF-APPELLEE’S FAVOR AS TO ALL ISSUES AND CLAIMS AND AGAINST DEFENDANTS, AND ITS AMENDED ENTRY GRANTING SUMMARY JUDGMENT AND DECREE IN FORECLOSURE TO PLAINTIFF-APPELLEE AGAINST DEFENDANTS-APPELLANTS.”

{¶13} In their sole assignment of error, appellants argue that the trial court erred by granting summary judgment in favor of appellee, and entitling appellee to a judgment and decree in foreclosure.

{¶14} “This court reviews de novo a trial court’s order granting summary judgment.” Hudspath v. Cafaro Co., 11th Dist. No. 2004-A-0073, 2005-Ohio-6911, at ¶8, citing Hapgood v. Conrad, 11th Dist. No. 2000-T-0058, 2002-Ohio-3363, at ¶13. “`A reviewing court will apply the same standard a trial court is required to apply, which is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law.’” Id.

{¶15} “Since summary judgment denies the party his or her `day in court’ it is not to be viewed lightly as docket control or as a `little trial.’ The jurisprudence of summary judgment standards has placed burdens on both the moving and the nonmoving party. In Dresher v. Burt [(1996), 75 Ohio St.3d 280, 296,] the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case but must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial. If the nonmoving party fails to do so, summary judgment, if appropriate shall be entered against the nonmoving party based on the principles that have been firmly established in Ohio for quite some time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112 ***.” Welch v. Ziccarelli, 11th Dist. No. 2006-L-229, 2007-Ohio-4374, at ¶40.

{¶16} “The court in Dresher went on to say that paragraph three of the syllabus in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 ***, is too broad and fails to account for the burden Civ.R. 56 places upon a moving party. The court, therefore, limited paragraph three of the syllabus in Wing to bring it into conformity with Mitseff. (Emphasis added.)” Id. at ¶41.

{¶17} “The Supreme Court in Dresher went on to hold that when neither the moving nor nonmoving party provides evidentiary materials demonstrating that there are no material facts in dispute, the moving party is not entitled a judgment as a matter of law as the moving party bears the initial responsibility of informing the trial court of the basis for the motion, `and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim.’ Id. at 276. (Emphasis added.)” Id. at ¶42.

{¶18} In the case at bar, the record establishes that appellant Traversari sent personal checks to appellee for payment on the loan at issue. However, appellee returned the checks with letters indicating they would not be accepted as payment because they were not certified, and foreclosure proceedings commenced.

{¶19} There is no genuine issue of material fact that appellants executed and delivered a note and mortgage to appellee. However, a genuine issue of material fact does exist with regard to the fact that appellant Traversari tendered the entire principal payment and appellee rejected it because the payment was made by personal check. See Chase Home Fin., LLC v. Smith, 11th Dist. No. 2007-P-0097, 2008-Ohio-5451, at ¶19. The dates and amounts of the personal checks are conflicting due to the testimony and/or evidence submitted by the parties.

{¶20} “A cause of action exists on behalf of a damaged mortgagor when, in conformity with the terms of his note, he offers to the mortgagee full payment of the balance of the principal and interest, and the mortgagee refuses to present the note and mortgage for payment and cancellation.” Cotofan v. Steiner (1959), 170 Ohio St. 163, paragraph one of the syllabus.

{¶21} Appellant Traversari did not place any conditions on the personal checks tendered to appellee. We note that “[t]he essential characteristics of a tender are an unconditional offer to perform, coupled with ability to carry out the offer and production of the subject matter of the tender.” Walton Commercial Enterprises, Inc. v. Assns. Conventions, Tradeshows, Inc. (June 11, 1992), 10th Dist. No. 91AP-1458, 1992 Ohio App. LEXIS 3081, at 5. (Emphasis sic.)

{¶22} “It is an implied condition of every contract that one party will not prevent or impede performance by the other. If he does prevent or impede performance, whether by his prior breach or other conduct, he may not then insist on performance by the affected party, and he cannot maintain an action for nonperformance if the promises are interdependent.” Fed. Natl. Mtge. Assns. v. Banks (Feb. 20, 1990), 2d Dist. No. 11667, 1990 Ohio App. LEXIS 638, at 8-9, citing 17 American Jurisprudence 2d, Contracts, Sections 425, 426.

{¶23} In the instant matter, paragraph 3 of the Open-End Mortgage provides:

{¶24} “3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under paragraphs 1 and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2; third; to interest due; fourth, to principal due; and last, to any late charges due under the Note.”

{¶25} Here, there was no new note and mortgage, nor agreement for application of payments, when the mortgage at issue was subsequently assigned from Loan America Financial Corporation to appellee. Rather, it was the policy of appellee to require mortgagors to pay by certified check for any amounts over $5,000. According to appellee’s employee, Torres, she indicated that any amount over $5,000 not paid by certified funds puts the company at risk because it can take anywhere between 7 to 10 days for a personal check to clear. We note, however, that the mortgagee has up to 90 days to verify the sufficiency of the underlying funds before satisfying and releasing its recorded mortgage. R.C. 5301.36(B). In the instant case, it would have been reasonable for appellee to have either waited 7 to 10 days for appellant Traversari’s checks to clear or to have inquired with his bank, see, generally, Hunter Sav. Assn. v. Kasper (Sept. 25, 1979), 10th Dist. No. 78AP-774, 1979 Ohio App. LEXIS 11777, at 13, if there were sufficient funds before returning any of his 3 personal checks and commencing foreclosure proceedings.

{¶26} The lender in this case unilaterally refused the debtor’s payment by check due to itsinternal policy that an amount over $5,000 had to be made by certified check. The terms and conditions of the mortgage, however, do not impose such a requirement. Under paragraph 3 of the Open-End Mortgage, it appears the lender had an obligation to apply the payment tendered, by personal check or otherwise. Its refusal to present the check for clearance and apply the payment on the ground of internal policy appears to have violated the debtor’s rights.

{¶27} Construing the evidence submitted most strongly in favor of appellants, we must conclude that genuine issues of material fact remain. Again, a genuine issue of material fact exists with regard to the fact that appellant Traversari tendered the entire principal payment and appellee rejected it because the payment was made by personal check. Also, the dates and amounts of the personal checks are conflicting due to the testimony and/or evidence submitted by the parties. Thus, the trial court erred by granting appellee’s motion for summary judgment.

{¶28} For the foregoing reasons, appellants’ sole assignment of error is well-taken. The judgment of the Geauga County Court of Common Pleas is reversed and the matter is remanded for further proceedings consistent with this opinion. It is ordered that appellee is assessed costs herein taxed. The court finds there were reasonable grounds for this appeal.

Trapp, P.J., Rice, J., concur.

Defendants are not named parties to the instant appeal.

The matter was stayed. On November 26, 2008, the Federal Deposit Insurance Corporation was substituted for appellee Washington Mutual Bank. This court instructed the Clerk of Courts to correct the docket by removing “Washington Mutual Bank” and substituting “Federal Deposit Insurance Corporation, as Receiver of Washington Mutual Bank” as appellee in this appeal. The stay order automatically dissolved on August 29, 2009.

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OK CIV. APPEALS COURT REVERSAL “CONFLICTS IN NOTE OWNERSHIP”, “MERS BIFURCATION” BAC HOME LOANS fka COUNTRYWIDE v. White

OK CIV. APPEALS COURT REVERSAL “CONFLICTS IN NOTE OWNERSHIP”, “MERS BIFURCATION” BAC HOME LOANS fka COUNTRYWIDE v. White


Via: Brian Davies

IN THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA. DIVISION I.

BAC HOME LOANS SERVICING, L.P.
f/k/a COUNTRYWIDE HOME LOANS

v.

RONALD R. WHITE and TERI L. WHITE

Excerpt:

Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. An assignment of the mortgage to one other than the holder of the note is no effect.

[…]

The record on summary judgment in the present case contains conflicting evidence as to the ownership of the note. The note, in which the White’s ppromised to pay a sum certain to the order of Lender, is a negotiable instrument pursuant to 12A O.S.2001 30104(a).

[…]

The note in the record appears to be indorsed to Countrywide Document Custody Services, a division of Treasury Ban, NA; we are unable to determine from the record submitted to us that the instrument was later indoresed in blank and transferred to BAC.

Continue below to read the research this judge has done…

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Read more on Bifurcation from James McGuire and Alvie Campbell below

“OREO COOKIE”: How They Bifuricated Our Mortgage Loan 101

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OHIO 2nd APPELLATE DIST. REVERSES SUMMARY JUDGMENT; BANK OF AMERICA v. LITTERAL

OHIO 2nd APPELLATE DIST. REVERSES SUMMARY JUDGMENT; BANK OF AMERICA v. LITTERAL


Bank of America, Plaintiff-Appellee,

v.
Rodney K. Litteral, et al., Defendant-Appellant.

Appellate No. 23900.

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on December 3, 2010.

Excerpt:

{¶ 1} Defendant-appellant Rodney Litteral appeals from a summary judgment rendered against him and in favor of plaintiff-appellee Bank of America. Litteral contends that the trial court abused its discretion and denied Litteral due process by failing to grant a motion for additional time to obtain counsel and respond, prior to granting the motion for summary judgment. Litteral also argues that the trial court erred by granting summary judgment before the deadline fixed by the trial court for Litteral’s response to the motion had passed.

{¶ 2} We conclude that the trial court erred in prematurely rendering summary judgment in favor of Bank of America. By prematurely entering the judgment the trial court erroneously removed Litteral’s timely filed motion for a continuance from its consideration. By depriving Litteral of the consideration of his motion within its sound discretion, the trial court erred to Litteral’s prejudice. Accordingly, the judgment of the trial court is Reversed, and this cause is Remanded for further proceedings consistent with this opinion.

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“NO STAMPS, NO FORECLOSURE” FL 3rd DCA REVERSAL ON A COMMERCIAL FORECLOSURE

“NO STAMPS, NO FORECLOSURE” FL 3rd DCA REVERSAL ON A COMMERCIAL FORECLOSURE


ONE 79th STREET ESTATES, INC. v. AMERICAN INVESTMENT SERVICES

One 79th Street Estates, Inc. and Darrell Wilson a/k/a Keith D. Wilson, a single man; Po Boy Realty Investment, Inc., Appellants,
v.
American Investment Services, Appellee.

No. 3D09-3134.

District Court of Appeal of Florida, Third District.

Opinion filed October 27, 2010.

Dorothy F. Easley, for appellants.
Mark Evans Kass, for appellee.

Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ. SALTER, J.

One 79th Street Estates, Inc., Po Boy Realty Investments, Inc., and their president, Mr. Wilson, appeal a final summary judgment of foreclosure on a commercial mortgage loan for $759,600, documented in June 2006. Because the appellee/lender, American Investment Services (AIS), accepted a very substantial paydown after an initial payment default and acceleration, and because of the conflicting terms of documents offering reinstatement of the mortgage after the entry of an earlier judgment, we reverse the final summary judgment and remand the case for further proceedings.

No Stamps, No Foreclosure

This was a commercial loan on stationery-store documents that were modified as additional advances occurred. There is nothing inherently wrong with pre-printed notes and mortgages, but in this case the forms omitted certain terms that might have guided the parties and the court after an unusual series of occurrences and problems. Less is not always more.

The first problem was a payment default by the appellants; this gave rise to a foreclosure complaint in 2006. The second problem was AIS’s failure to pay for documentary stamp and intangible taxes on the mortgage, and to record it. Notwithstanding the fatal deficiency inherent in AIS’s failure to pay the required taxes,1 and apparently as a result of the appellants’ failure to mount any meaningful defense, a predecessor trial judge entered a final summary judgment of foreclosure in January 2007. A foreclosure sale was then set for April 5, 2007.

At some point before that sale, the parties entered into a reinstatement and mortgage modification agreement. The April 2007 “Agreement for Reinstatement of Mortgage and to Secure Additional Advances” included (among other terms) a recitation of the loan history, an itemized reinstatement amount of $100,503 (acknowledging receipt of $34,100 paid by the appellants to reduce that arrearage to $66,403), and a postponement of the foreclosure sale for 75 days so that the appellants could pay that balance. Paragraph 6 of the agreement stipulated that “the mortgage note and mortgage are a good and valid mortgage on the subject property and that [the appellants] have no defenses thereto.” In June 2007, it is undisputed that the appellants made a further payment of $82,000 to AIS, bringing the total post-judgment payments to $116,100.2

No Reinstatement, No Refund, No Judgment

AIS later maintained that the payments of $116,100 were insufficient to reinstate the mortgage, but were tendered and accepted only in consideration of AIS’s agreement to reschedule foreclosure sale dates. Ultimately, AIS did not reinstate the mortgage, dismiss the foreclosure, or return any of the payments made by the appellants. In December 2007, just before a rescheduled sale, Mr. Wilson filed a petition under Chapter 13 of the United States Bankruptcy Code and the sale was cancelled. During the bankruptcy, Mr. Wilson raised the lender’s non-payment of taxes and resulting unenforceability of the mortgage. The bankruptcy court sent the parties back to the circuit court for a resolution of that issue. In June 2008, the trial court vacated the foreclosure judgment and abated the foreclosure lawsuit to permit AIS to pay the documentary stamp and intangible taxes and record the mortgage. AIS then took those steps.
Resumption of the Foreclosure Action

In November 2008, the bankruptcy court dismissed Mr. Wilson’s Chapter 13 case. In 2009, AIS resumed its prosecution of the original 2006 foreclosure case and moved again for final summary judgment. The appellants were allowed to amend their affirmative defenses before AIS’s motion was heard.

Although the appellants raised a number of affirmative defenses and related issues in Mr. Wilson’s affidavit,3 only one issue merits consideration here. The appellants’ second and third amended affirmative defenses asserted that the mortgage was to have been reinstated upon AIS’s receipt of the $116,100 in payments in April and June of 2007. After a hearing, these amended affirmative defenses were rejected. AIS’s motion was granted, the final summary judgment was entered, and this appeal followed.

Analysis

When a mortgage is foreclosed, the mortgage is “merged” into the final judgment and loses its separate identity. Nack Holdings, LLC v. Kalb, 13 So.3d 92, 94 n.2 (Fla. 3d DCA 2009). The “reinstatement” of a mortgage after the entry of a foreclosure judgment is considerably more significant than merely rescheduling a foreclosure sale date. Reinstatement signifies that the mortgage is returned to its pre-default status asan effective instrument, by definition anticipating that any foreclosure judgment is vacated and the lawsuit dismissed.4 There is no apparent reason the parties could not have agreed to some form of settlement agreement whereby the foreclosure judgment would be reduced by the amounts paid, the lawsuit would not be dismissed, and a sale would only be set if the judgment debtor defaulted on future obligations, but that is not the agreement memorialized in this case.

Rather, the April 2007 reinstatement agreement expressly refers to an opportunity for the mortgagor to “reinstate” the AIS mortgage, to a “cure” of past amounts due, to the addition of the liquor license foreclosure amount “to the amount due under [AIS’s] note and mortgage,” and to a stipulation that “the mortgage note and mortgage are a good and valid mortgage on the subject property.” Each of these terms indicates a withdrawal of acceleration and a return of the mortgage loan to its pre-default, pre-foreclosure status. Coupled with the appellants’ undisputed payment of amounts exceeding the specified “arrearage,” and AIS’s retention of those payments,5 AIS is not entitled to judgment as a matter of law.

Another incongruity in the pleadings, affidavits, and judgment is evident in the interest amounts computed by AIS and included in the summary final judgment. Simple arithmetic discloses that AIS used the default interest rate of 18% per annum versus the “good standing” rate of 16%. If, as the appellants plainly intended, the $116,100 was tendered for “reinstatement,” the lower rate would have applied unless and until further (post-reinstatement) defaults arose and were noticed, and until the reinstated loan was again accelerated as a result of any such defaults.

Conclusion

Reviewing this record and all inferences in favor of the appellants as required,6 we conclude that a triable issue exists regarding the June 2007 reinstatement agreement and the parties’ performance under it. Because the final summary judgment was denied as to any personal liability of Mr. Wilson under the mortgage loan, we have not addressed the parties’ contentions on that point.

The final summary judgment is reversed and the case is remanded for further proceedings.7
Not final until disposition of timely filed motion for rehearing.

Footnotes

5. In AIS’s affidavits in support of its motion for summary judgment, AIS attached a letter from AIS’s counsel in June 2007 purporting to add additional terms for reinstatement. If there was not a meeting of the minds, however, and the appellants were not entitled to reinstatement, AIS had no right to retain the payments tendered pursuant to the agreement.

6. Sheikh v. Coregis Ins. Co., 943 So.2d 242, 244 (Fla. 3d DCA 2006).

7. Such further proceedings should also address the appellants’ requests for additional discovery and leave to amend to add a counterclaim. Those motions were denied in connection with the summary judgment rulings.

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Posted in STOP FORECLOSURE FRAUDComments (1)

FL 4th DCA COURT OF APPEALS REVERSES SUMMARY JUDGMENT: ALEJANDRE v. DEUTSCHE BANK TRUST COMPANY

FL 4th DCA COURT OF APPEALS REVERSES SUMMARY JUDGMENT: ALEJANDRE v. DEUTSCHE BANK TRUST COMPANY


JUDITH ALEJANDRE and SERGIO TERRON, Appellants,
v.
DEUTSCHE BANK TRUST COMPANY AMERICAS

f/k/a BANKER’S TRUST COMPANY, as TRUSTEE
and CUSTODIAN FOR NATIXIS 2007-HE2, Appellee.

No. 4D09-2280.

October 13, 2010 –

Joshua Bleil and Jessica Ticktin of The Ticktin Law Group, P.A.,
Deerfield Beach, for appellants.

No brief filed for appellee.

Judith Alejandre and Sergio Terron (Alejandre) appeal the summary judgment of foreclosure in favor of Deutsche Bank Trust Company. Alejandre asserts that the trial court erred in granting the summary judgment and that they had asserted affirmative defenses which were not denied by Deutsche, dealt with during the hearing on the motion for summary judgment or addressed in the final judgment. We agree and reverse.

Deutsche filed an amended complaint with the necessary documentation alleging that it was entitled to foreclose on the property in question. In Alejandre’s answer to the amended complaint, they asserted as affirmative defenses, the Real Estate Settlement Procedures Act (RESPA), the Truth in Lending Act (TILA), and unclean hands. In moving for summary judgment, Deutsche attached an affidavit stating that it had advanced to Alejandre, and is owed by Alejandre, the sum of $337,567.26. In its motion, however, it did not address any of the pending affirmative defenses. Nonetheless, the trial court granted Deutsche’s motion for summary judgment, prompting this appeal.

“The standard of review of the entry of summary judgment is de novo.” Craven v. TRG-Boynton Beach, Ltd.,925 So.2d 476, 479 (Fla. 4th DCA 2006). Further, [t]he law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Id. at 479-80. “Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Frost v. Regions Bank,15 So.3d 905, 906 (Fla. 4th DCA 2009).

When a party raises affirmative defenses, “[a] summary judgment should not be granted where there are issues of fact raised by [the] affirmative defense[s] which have not been effectively factually challenged and refuted.” Cufferi v. Royal Palm Dev. Co.,516 So.2d 983, 984 (Fla. 4th DCA 1987). Thus, “`[i]n order for a plaintiff . . . to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.’” Id. (quoting Bunner v. Fla. Coast Bank of Coral Springs, N.A.,390 So.2d 126, 127 (Fla. 4th DCA 1980)). In such instances, “[t]he burden is on the plaintiff, as the moving party, to demonstrate that the defendant could not prevail.” Id.

In Frost, a bank/mortgagee filed a foreclosure claim against a mortgagor. In response to that complaint, the mortgagors filed an answer that contained the affirmative defense of notice and opportunity to cure. The bank filed a motion for summary judgment. In opposition to that motion, the mortgagors did not file any papers or affidavits. At the hearing, the mortgagors contended that summary judgment was improper because the bank failed to address their affirmative defense. The trial court granted the bank’s motion for summary judgment. Frost, 15 So. 3d at 906.

On appeal, this court reversed. We stated that the bank failed to refute the mortgagors’ affirmative defense of lack of notice and opportunity to cure. The bank failed to meet this requirement because “[n]othing in the bank’s complaint, motion for summary judgment, or affidavits indicate that the bank gave the [mortgagors] the notice which the mortgage required. The bank also did not establish that the [mortgagors’] lack of notice and opportunity to cure defense was legally insufficient.” Id. at 906. This Court held that “[b]ecause the bank did not meet its burden to refute the [mortgagors’] lack of notice and opportunity to cure defense, the bank is not entitled to final summary judgment of foreclosure.” Id. at 906-07.

In the instant case, as in Frost, the trial court’s entry of summary judgment was improper. Here, as in Frost, Deutsche moved for summary judgment, but in that motion, it failed to address affirmative defenses raised by the mortgagor, Alejandre. Because Deutsche failed to address Alejandre’s affirmative defenses, it did not carry its burden on summary judgment. Therefore, the trial court’s entry of summary judgment was erroneous. We do not pass upon the merits of the affirmative defenses, as that is a matter to be addressed in further proceedings.

Reversed and Remanded for Further Proceedings Consistent with this Opinion.

TAYLOR and CIKLIN, JJ., concur.

ALEJANDRE v. DEUTSCHE BANK TRUST COMPANY

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Posted in deutsche bank, foreclosure, foreclosure fraud, foreclosures, reversed court decisionComments (3)

GA grant of summary judgment to defendant in foreclosure case REVERSED, genuine issue of fact remained.

GA grant of summary judgment to defendant in foreclosure case REVERSED, genuine issue of fact remained.


LY et al.,
v.
JIMMY CARTER COMMONS, LLC.

S09A1644.

Supreme Court of Georgia.

Decided: March 1, 2010.

CARLEY, Presiding Justice.

Franklin and Toni Ly (Appellants) initiated foreclosure proceedings against a shopping center owned by Jimmy Carter Commons, LLC. Jimmy Carter Commons filed an action to enjoin foreclosure and cancel the security deed and various loan documents upon which the foreclosure proceedings were based. The trial court entered a temporary injunction, and subsequently granted summary judgment to Jimmy Carter Commons. This appeal followed.

1. On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is “a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit]” Northwest Carpets v. First Nat. Bank of Chatsworth, 280 Ga. 535, 538 (1) (630 SE2d 407) (2006). Viewed in favor of Appellants, the evidence shows that James Byun and Jin Choi were the managers of Jimmy Carter Commons, a limited liability company. Byun, purportedly acting on behalf of Jimmy Carter Commons, obtained a $1 million loan from Appellants for a real estate development project. Before executing the loan documents, Appellants learned that the operating agreement for Jimmy Carter Commons requires the approval of both Byun and Choi for such a transaction. Appellants then prepared a document entitled “Jimmy Carter Commons, LLC Unanimous Written Consent of the Manager and Members,” which authorized Byun alone “to execute the Promissory Note and Deed to Secure Debt” in question. That document was signed by Byun and ostensibly signed by Choi. Appellants and Byun then executed the loan documents, showing that the loan was made to Jimmy Carter Commons, and the loan deed conveying to Appellants the shopping center to secure the debt. Over a year later, Byun and Appellants executed loan modification documents increasing the principal amount of the loan to $1.5 million. Those documents included a “Unanimous Consent of Members of Jimmy Carter Commons, LLC,” which states that the members of the company authorize and approve the guaranty of the loan, including execution of the deed to secure debt. That document also bears the signature of Byun and the purported signature of Choi.

In granting summary judgment, the trial court found that it is undisputed that Byun did not have authority to act alone on behalf of Jimmy Carter Commons because its operating agreement required the approval of Choi, that Choi had no dealings with Appellants and did not authorize the transaction in question, that Choi’s signatures on the unanimous consent documents were forged, and that those documents were ineffective to authorize Byun alone to bind the company. However, even if all of that is true, there is still a genuine issue of material fact as to whether Appellants had knowledge that the unanimous consent documents were ineffective and did not give Byun the authority to act alone on behalf of Jimmy Carter Commons.

[T]he act of any manager [of a limited liability company] . . . binds the limited liability company, unless the manager so acting has, in fact, no authority to act for the limited liability company in the particular matter, and the person with whom he or she is dealing has knowledge of the fact that the manager has no such authority. (Emphasis supplied.)

OCGA § 14-11-301 (b) (2). Thus, “[n]o act of a manager . . . in contravention of a restriction on authority shall bind the limited liability company to persons having knowledge of the restriction.” OCGA § 14-11-301 (d).

Consequently, even if Byun acted beyond his authority as a manager of Jimmy Carter Commons, the limited liability company may still be bound by his actions if Appellants did not know that he lacked such authority. In its summary judgment order, the trial court did not cite, and Jimmy Carter Commons has not identified, undisputed evidence showing that Appellants knew that Choi’s signatures on the consent documents were forged. On the contrary, Franklin Ly testified that he had attorneys prepare the consent documents specifically to confirm Byun’s claim that he had authority to act alone on behalf of Jimmy Carter Commons, that the documents were sent to Jimmy Carter Commons in order for Byun and Choi to sign them, that the consent documents were then brought to the closing of the transactions with both Byun’s signature and Choi’s apparent signature, that it was represented to Ly that Choi had signed the documents, and that he believed that Choi had in fact signed them. This testimony creates genuine issues of material fact as to whether Appellants knew that Choi’s signatures were forged, and whether they were justified in assuming that the consent documents authorized Byun’s unilateral action on behalf of Jimmy Carter Commons. See Turnipseed v. Jaje, 267 Ga. 320, 323 (2) (a) (477 SE2d 101) (1996) (must appear that person of ordinary prudence was justified in assuming that agent had authority to perform a particular act); Capital Color Printing v. Ahern, 291 Ga. App. 101, 112 (2) (661 SE2d 578) (2008) (where agent with apparent authority commits fraud against a third party who reasonably believed that he was entering into a bona fide transaction, principal may be charged with the fraud).

On summary judgment, a trial court is not authorized to resolve disputed issues of material fact. A trial court is authorized only to determine whether disputed issues of material fact remain. If, and only if, no disputed issue of material fact remains is the trial court authorized to grant summary judgment.

Georgia Canoeing Assn. v. Henry, 263 Ga. 77, 78 (428 SE2d 336) (1993). Since disputed issues of material fact remain in this case, the trial court erred in granting summary judgment to Jimmy Carter Commons.

2. Because of our holding in Division 1, we need not address Appellants’ remaining claims of error with regard to the summary judgment ruling.

Judgment reversed. All the Justices concur.

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Posted in conspiracy, CONTROL FRAUD, foreclosure, foreclosure fraud, foreclosures, forgery, lawsuit, mortgage, Real Estate, reversed court decisionComments (1)

FL 4th DCA FINAL SUMMARY FORECLOSURE JUDGMENT REVERSED!!  LAZURAN vs. CitiMortgage Inc, Law Offices of David J. Stern PA et al

FL 4th DCA FINAL SUMMARY FORECLOSURE JUDGMENT REVERSED!! LAZURAN vs. CitiMortgage Inc, Law Offices of David J. Stern PA et al


When is someone going to really sanction these characters??

Time after time…I will say they’re days are numbered and we are getting closer and closer.

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Posted in citimortgage, djsp enterprises, foreclosure, foreclosure fraud, foreclosure mills, Law Offices Of David J. Stern P.A., reversed court decisionComments (0)

“FLORIDA REVERSAL” Ruscalleda vs Hsbc Bank

“FLORIDA REVERSAL” Ruscalleda vs Hsbc Bank


Here we have what appears HSBC foreclosing on a mortgage where another bank has it’s hands on it at another action!

We are seeing a pattern where multiple banks are trying to claim one single mortgage.

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Posted in case, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, HSBC, shapiro & fishman paComments (0)

REJECTED, REVERSED, LACK OF STANDING, ASSIGNMENT ERROR: Bank of New York v. GINDELE, 2010 Ohio 542 – Ohio: Court of Appeals, 1st Dist., Hamilton

REJECTED, REVERSED, LACK OF STANDING, ASSIGNMENT ERROR: Bank of New York v. GINDELE, 2010 Ohio 542 – Ohio: Court of Appeals, 1st Dist., Hamilton


2010 Ohio 542

Bank of New York, As Trustee For the Certificate Holders Cwalt, Inc., Alternative Loan Trust 2006-40T1, Mortgage Pass-Through Certificates, Series 2006-40T1, Plaintiff-Appellee,
v.
Jamie L. Gindele and Gary Gindele, Defendants-Appellants.

Appeal No. C-090251.

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: February 19, 2010.

James S. Wertheim, Rose Marie L. Fiore, and McGlinchey Stafford, PLLC, for Plaintiff-Appellee.

James J. Slattery, Jr., for Defendants-Appellants.

DECISION.

WILLIAM L. MALLORY, Judge.

{¶1} Defendants-appellants Jamie and Gary Gindele appeal the summary judgment entered for plaintiff-appellee Bank of New York on its foreclosure complaint. On appeal, the Gindeles argue that Bank of New York did not acquire its interest until after the foreclosure complaint had been filed, and that under our holding in Wells Fargo Bank, N.A. v. Byrd,[1] Bank of New York’s complaint should have been dismissed without prejudice. We agree.

{¶2} In Byrd, we held that “in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage.”[2] At oral argument in this case, Bank of New York has repeated its assertion that it had an existing interest in the property at issue when it filed suit, but the record does not support this assertion.

{¶3} A thorough review of the record reveals that the sole indication of its interest as mortgagee is an after-acquired assignment; and the bank failed to produce any evidence in the trial court affirmatively establishing a preexisting interest. Bank of New York has also asserted both that it had acted as an agent, and that its predecessor in interest had later ratified its foreclosure complaint. But because at the time of filing neither agency nor ratification had been alleged or documented, we will not entertain this argument on appeal.

{¶4} We likewise reject Bank of New York’s argument that the real party in interest when the lawsuit was filed was later joined by the Gindeles. We are convinced that the later joinder of the real party in interest could not have cured the Bank of New York’s lack of standing when it filed its foreclosure complaint. This narrow reading of Civ.R. 17 comports with the intent of the rule. As other state and federal courts have noted, Civ.R. 17 generally allows ratification, joinder, and substitution of parties “to avoid forfeiture and injustice when an understandable mistake has been made in selecting the parties in whose name the action should be brought.”[3] “While a literal interpretation of * * * Rule 17(a) would make it applicable to every case in which an inappropriate plaintiff was named, the Advisory Committee’s Notes make it clear that this provision is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. When determination of the correct party to bring the action was not difficult and when no excusable mistake was made, the last sentence of Rule 17(a) is inapplicable and the action should be dismissed.”[4]

{¶5} In this case, the record does not reflect any understandable mistake by Bank of New York; there is no indication that the identity of the proper party was difficult to ascertain; and there is no documentary proof that Bank of New York owned an enforceable interest when it filed its foreclosure complaint.

{¶6} In a foreclosure action, absent understandable mistake or circumstances where the identity of a party is difficult or impossible to ascertain, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage. Bank of New York failed to establish an enforceable interest that existed at the time it filed suit, and it has not alleged or proved understandable mistake or that the identity of the proper party was not readily ascertainable. Bank of New York’s complaint in foreclosure should have been dismissed without prejudice under Byrd.

{¶7} The Gindeles’ assignment of error is sustained, the judgment favoring Bank of New York is reversed, and this cause is remanded for further proceedings in accordance with this decision.

Judgment reversed and cause remanded.

Cunningham, P.J., and Dinkelacker J., concur.

[1] 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722.

[2] Id. at ¶16.

[3] Ohio Central RR. Sys. v. Mason Law Firm Co., LPA, 182 Ohio App.3d 814, 2009-Ohio-3238, 915 N.E.2d 397, quoting Agri-Mark, Inc. v. Niro, Inc. (D.Mass.2000), 190 F.R.D. 293; see, also, Fed.R.Civ.P. 17 Advisory Committee Note.

[4] Id.

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Posted in bank of new york, case, concealment, foreclosure, foreclosure fraud, reversed court decisionComments (0)

Lawsuit Tied to Loan Commitment: Siller v. OPTION ONE MORTGAGE CORPORATION CA4/1

Lawsuit Tied to Loan Commitment: Siller v. OPTION ONE MORTGAGE CORPORATION CA4/1


REVERSED : OVERTURNED

“Play it back and rewind”

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Posted in case, forensic mortgage investigation audit, reversed court decisionComments (2)

Fla. judge reverses GMAC loan: New York Post

Fla. judge reverses GMAC loan: New York Post


Special Thanks to: RICHARD WILNER NYPOST

Fla. judge reverses GMAC loan

By RICHARD WILNER

Last Updated: 4:23 AM, April 25, 2010

Posted: 12:14 AM, April 25, 2010

GMAC Mortgage got slammed by a Florida judge this month — and that may be good news for some of the 1,234 New York homeowners hit with a foreclosure action by GMAC since the beginning of 2008.

In that case, Judge Anthony Rondolino voided a GMAC foreclosure win after he found out legal papers filed by the company with the court to steamroll its way over homeowner Debbie Visicaro were faulty. They were filed by an employee of GMAC’s law firm who had no personal knowledge of the faulty mortgage’s position.

In short, they were based entirely on hearsay.

Lawyers familiar with foreclosure actions filed by law firm mills, as was done in this case, say such instances aren’t rare.

Visicaro, like most of the New York homeowners, at first decided to fight the foreclosure action without a lawyer. She didn’t know that the law firm employee was guessing in his court papers. But Visicaro finally hired a lawyer, Michael Alex Wasylik, who pointed out the flimsy evidence to the judge who then admitted he made a mistake when he first awarded GMAC a quickie legal win.

When the GMAC lawyer couldn’t explain away the bad evidence — and could only manage a Ralph Kramden-like hamina-hamina-hamina — the judge barked: “You’re going to have to speak up. I know that when you’re getting pummeled, it’s hard to talk loudly.”

“You know what I’d really like to see?” Rondolino said. “I’d like to see in one of these cases where a defense lawyer cross-examines, takes a deposition of these people, and we can see whether they ought be charged with perjury for all these affidavits.”

The 720 homeowners still fighting active cases — of the 1,234 filed in New York over the last 28 months — should start asking questions about the affidavits submitted in their cases, lawyers said. Maybe the legal papers in their case are built on legal ground as firm as that in the Visicaro case.

Posted in concealment, conspiracy, foreclosure fraud, foreclosure mills, Law Offices Of David J. Stern P.A.Comments (0)

GMAC v Visicaro Case No 07013084CI: florida judge reverses himself: applies basic rules of evidence and overturns his own order granting motion for summary judgment

GMAC v Visicaro Case No 07013084CI: florida judge reverses himself: applies basic rules of evidence and overturns his own order granting motion for summary judgment


THIS IS WORTH REPEATING OVER AND OVER!!!!

From: Neil Garfield Livinglies

RIGHT ON POINT ABOUT WHAT WE WERE JUST TALKING ABOUT IN HEARING YESTERDAY!!

I appeared as expert witness in a case yesterday where the Judge had trouble getting off the idea that it was an accepted fact that the note was in default and that ANY of the participants in the securitization chain should be considered collectively “creditors” or a creditor. Despite the fact that the only witness was a person who admitted she had no knowledge except what was on the documents given to her, the Judge let them in as evidence.

The witness was and is incompetent because she lacked personal knowledge and could not provide any foundation for any records or document. This is the predominant error of Judges today in most cases. Thus the prima facie case is considered “assumed” and the burden to prove a negative falls unfairly on the homeowner.

The Judge, in a familiar refrain, had trouble with the idea of giving the homeowner a free house when the only issue before him was whether the motion to lift stay should be granted. Besides the fact that the effect of granting the motion to lift stay was the gift of a free house to ASC who admits in their promotional website that they have in interest nor involvement in the origination of the loans, and despite the obviously fabricated assignment a few days before the hearing which violated the terms of the securitization document cutoff date, the Judge seems to completely missed the point of the issue before him: whether there was a reason to believe that the movant lacked standing or that the foreclosure would prejudice the debtor or other creditors (since the house would become an important asset of the bankruptcy estate if it was unencumbered).

If you carry over the arguments here, the motion for lift stay is the equivalent motion for summary judgment.

This transcript, citing cases, shows that the prima facie burden of the Movant is even higher than beyond a reasonable doubt. It also shows that the way the movants are using business records violates all standards of hearsay evidence and due process. Read the transcript carefully. You might want to use it for a motion for rehearing or motion for reconsideration to get your arguments on record, clear up the issue of whether you objected on the basis of competence of the witness, and then take it up on appeal with a cleaned up record.

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RELATED ARTICLE:

Judge reversed his own ruling that had granted summary judgment to GMAC Mortgage (DAVID J. STERN)


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Posted in Law Offices Of David J. Stern P.A.Comments (1)

Judge reversed his own ruling that had granted summary judgment to GMAC Mortgage (DAVID J. STERN)

Judge reversed his own ruling that had granted summary judgment to GMAC Mortgage (DAVID J. STERN)


My am news could never arrive too early from one of my favorite person. This judge unleashed a can of WHOOP ARSE!

I think you will find this transcript very interesting.  These highlights are from a Motion for Rehearing where the Court had granted summary judgment for the lender in a foreclosure case.  The judge is Honorable Anthony Rondolino from Pinellas County, Florida.  The hearing took place on April 7, 2010.  Counsel for the homeowner/defendant, Debbie Visicaro, was  Michael Alex Wasylik.

The judge reversed his own ruling that had granted summary judgment to GMAC Mortgage.
The judge noted that in a recent foreclosure summary judgment hearing, there was a different plaintiff pursuing foreclosure on the same note and mortgage in a different county.
In both cases, there was a count to reestablish the [lost] note and “both of them had gone so far as to have affidavits filed in support of a summary judgment whereby an individual represented to the Court in the Affidavit that the separate plaintiffs had possessed the note and had lost the note while it was in their possession.”
“Interestingly, both affidavits, although they were different plaintiffs, purported the same facts and they were executed by the same individual in alleged capacity as a director of two separate corporations, one of which was ultimately found to be an assignee of the original note.
So that really increased my interest in this subject matter, because I really honestly — I don’t have any confidence that any of the documents the Court’s receiving on these mass foreclosures are valid.(p.7)…

“I guess what you’re telling me I’ve got the discretion to be – – continually be wrong.” (p.11)
Then, (on page 15) regarding the affidavit in support of summary judgment submitted by GMAC:
Attorney for GMAC: Paragraph Two of our Affidavit says that based upon their personal knowledge, they’re authorized to make certain statements therein.
The Court: You know what I’d really like to see?  I’d like to see in one of these cases where a defense lawyer cross-examines, takes a deposition of these people, and we can see whether they out to be charged with perjury for all of these affidavits.(p.16)
“I would love to see that because, I’m going to tell you the truth, I had a lawyer on the phone from Miami telling me that they’ve got somebody in their office who is authorized by reason of a power of attorney filed as a public record.  So that was supposed to be the support they have for their personal knowledge affidavits.”
The attorney for GMAC  was Steven Frasier from the Law Offices of David Stern.

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Posted in conspiracy, Law Offices Of David J. Stern P.A.Comments (4)


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