September 5, 2012
The Florida 4th District Court of Appeal has reversed the denial of a homeowner’s motion for post-judgment relief after a summary judgment was entered in favor of HSBC Bank as the claimed “trustee” of a Deutsche Bank securitization. Although HSBC claimed that it noticed the homeowner’s attorney for the SJ hearing, the attorney did not appear, which non-appearance the appeallate court found to constitute the type of “excusable neglect” which warrants relief under Florida’s post-judgment relief rule, that being Florida Rule of Civil Procedure 1.540(b).
The homeowner was represented in the appeal by FDN network attorney Melvia Harris-Rozier, Esq. of West Palm Beach, Florida. The style of the case is Gascue v. HSBC Bank etc., 4th DCA Case No. 4D10-1379 (Decision entered August 29, 2012).
The appellate court also found that there was no evidence indicating that HSBC was the holder of the mortgage at the time that the Complaint was filed, as the only “evidence” that HSBC was the alleged owner and holder of the Note was an affidavit filed 3 years after the Complaint was filed, which did not establish WHEN HSBC became the holder of the Note. This decision is one of a recent line of Florida appellate decisions which require that a foreclosing “bank” establish, by competent evidence relating to either an endorsement or assignment or allegted transfer, that it was the owner and holder of the Note at the time that the foreclosure Complaint was filed.
The appeals court reversed the denial of post-judgment relief and remanded for an evidentiary hearing on the homeowner’s Motion, and also granted the homeowner’s Motion for Attorneys’ Fees.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com