January 24, 2020
A Palm Beach County Circuit Court Judge today denied Citi’s Motion for Summary Judgment, finding that there are genuine issues of material fact as to whether the alleged “original” Note is in fact an original. Citi had filed a foreclosure action in 2009 in which it represented to the Court that the Note was lost, but later claimed to have found it. The 2009 case was dismissed, and Citi refiled in 2017. Jeff Barnes, Esq. of W.J. Barnes, P.A. represented the homeowners in the 2009 case and also represents them in the 2017 case.
An attorney from the law Firm representing Citi claimed to have obtained the “original” Note from the court file in the 2009 case. However, the Clerk’s notes state that although Citi’s filing stated that the Note was an original, it was a copy. The homeowners requested and were granted a personal inspection of the claimed “original” Note, and have filed Affidavits that the claimed “original” is not an original based on numerous factors. To date, no affidavits have been filed by Citi to contradict the homeowners’ affidavits.
The homeowners have attempted to subpoena the attorney who claims to have obtained the “original” Note from the 2009 case court file, but shortly after the homeowners filed their Affidavits, that attorney suddenly no longer worked for the law Firm, and he has been avoiding service of a deposition subpoena.
The Judge found that based on the conflicting positions of the parties and the fact that the homeowners filed Affidavits that there are genuine issues of material fact as to whether the claimed “original” is in fact and original. There are also numerous other issues concerning claims of setoff, standing, and unilateral modification of the loan documents.
The case has been set for trial for May 8, 2020.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com