A clerical error cost Bank of America a four-year foreclosure case when it should have been something clear-cut. In 2009 the plaintiff was granted a final judgment against the defendant Heather Epstein. She moved out of the property the following year. And, Bank of America took over the property with a new certificate of title. However, problems soon arose when the mortgage and all subsequent documents had an incorrect legal description of the property.
Court documentation points towards the bank having knowledge of the clerical error; after the Broward County property appraiser’s office rebuffed the certificate of title and negated to transfer the title due to not being able to match the legal description. It took the bank two years to start taking action in order to fix the problem. This left Epstein as the documented owner while facing the condo association bills.
The trial court denied, without prejudice, a motion filed by Bank of America in 2012 to decimate the foreclosure judgment. Also, they denied the certificate of title in order to have the legal description discrepancy corrected. But, because of Florida’s rule of civil procedure which only allows a one-year period to annul judgments due to errors. However, in 2013 when the Bank made a second attempt stating that the incorrect legal description could affect the rights of a neighboring property, the trial court allowed it urging Epstein to appeal.
Judge Cory Ciklin and Judge Alan Forst both agreed with Fourth DCA Judge Burton Conner. He stated that Bank of America would need to start the foreclosure action against Epstein. This was because the court could have corrected the legal description issue before the foreclosure judgment but not after. This is both good news and bad news for Epstein. The reason is that although she will regain control over the property, she will need to battle it out in court to figure out who is liable for the past due upkeep and maintenance after she vacated the property.
Another case of clerical slipups, this time by the court and not the bank, cost Wachovia Mortgage FSB its foreclosure case against Jose Montes and Catalina Solano of Courtyard Homes at the Grove in Weston. Wachovia filed the original promissory note before the trial. However, when the note could not be found in the court file, the defendants challenged the bank’s evidence. And, as a result, they won the involuntary dismissal. Adding insult to injury, a week later a court clerk found the note and mailed it back to the bank. It took over a year to resolve the appeal.
If you have questions about Foreclosure, Loan Modification, Bankruptcy, Short Sale, or other alternatives, please feel free to call my office at 888-886-0020, send an e-mail to emil@fleysherlaw.com, or complete the contact form below.
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