Defective Paperwork Should Win You The Case, But That’s Not Necessarily True

While lenders who provide unsigned, undated or even wrong documentation in foreclosure cases should immediately have their case thrown out, judges are often willing to give them a pass.

One could assume that screwed up paperwork would cost the lender their case, but it doesn’t necessarily mean that because it depends on which judge is handling it. For BAC Home Loans Servicing LP, mishandled documentation during the height of the robo-signing cost them a foreclosure judgment against homeowner Rosanie Joseph because they failed to prove standing to sue. The foreclosure judgment passed by Palm Beach Circuit Judge Diana Lewis was reversed due to lack of evidence proving that Taylor Bean & Whitaker Mortgage Corp was the owner of the mortgage when the foreclosure was filed against Joseph.

The lawsuit had the 2008 mortgage, provided by Key Mortgage Associates, attached but there was no assignment or note with the filing by Taylor Bean which they reported as lost or stolen. Taylor Bean later assigned the note to BAC, who then picked up the foreclosure and ran with it. However during the trial, BAC was able to present the mortgage and note. The note was endorsed twice by the same person from Key Mortgage and Taylor Bean but neither was dated. Judge Martha Warner wrote on behalf of the unanimous panel “A party must establish its standing to bring a mortgage foreclosure complaint by establishing an assignment or equitable transfer of the note and mortgage prior to instituting the complaint.”

In the Gafoor and Nina Jaffer v. Chase Home Finance case, the panel had a split litigation. The Jaffers declared that Chase provided the mortgage note payable to a third party without providing proof of the transfer and used an amended complaint that declined to state a cause of action. However, due to failing to respond to the lawsuit prior to a default being entered, the Jaffers waived the question of Chase’s standing. Chase acknowledged that some of their employees signed affidavits about loan documents without first inspecting the loan file. But the Fourth DCA upheld summary judgment issued by Broward Circuit Judge Sandra Perlman. In the 2-1 unsigned decision, Judges Spencer Levine and Klingensmith concurred. Judge Burton Conner dissented, citing Chase’s failure to file an accurate copy of the mortgage note.

Broward Circuit Judge Kathleen Ireland ruled in favor of homeowner Theresa Boglioli against Deutsche Bank National Trust Co. after the lender executed the mortgage transfer post filing its foreclosure complaint against Ms. Boglioli and provided a blank, undated endorsement in the midst of other documents. The unsigned opinion was issued by Judges Jonathan Gerber, Cory Ciklin and Levine. With this many discrepancies and inconsistent rules within the same District, some speculate that there will be a rise in request for full court review.

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.