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

Written By: Emil FleysherJanuary 28, 2015

One could assume that defective 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. This was because they failed to prove standing to sue. The foreclosure judgment passed by Palm Beach Circuit Judge Diana Lewis was reversed. The reason is due to the 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. However, 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 same person from Key Mortgage and Taylor Bean endorsed the note twice, but neither had a date. 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."

The Jaffers' Case of Defective Paperwork

In the Gafoor and Nina Jaffer v. Chase Home Finance case, the panel had split litigation. The Jaffers declared that Chase provided the mortgage note payable to a third party without providing proof of the transfer. And, he used an amended complaint that declined to state a cause of action. However, due to failure 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.

Boglioli Case

Broward Circuit Judge Kathleen Ireland ruled in favor of homeowner Theresa Boglioli against Deutsche Bank National Trust Co. This was 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. Judges Jonathan Gerber, Cory Ciklin, and Levine issued the unsigned opinion. With this many discrepancies and inconsistent rules within the same District, some speculate that there will be a rise in requests 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, or complete the contact form below.

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