November 20, 2013

In a span of 3 business days, one Florida Judge has denied a servicer’s request for the entry of a foreclosure judgment without a summary judgment motion or trial in one case; another Florida Judge has dismissed a Bank of New York securitization case and assessed attorneys’ fees against Bank of New York in another case; and a Colorado District Judge has enjoined a non-judicial foreclosure sale on a foreclosure attempt by Bank of New York. The homeowners in each of the cases are represented by Jeff Barnes, Esq.

On November 14, 2013, a Lee County (Ft. Myers, Florida) Judge denied Nationstar’s Motion for an Order to Show Cause why a foreclosure judgment should not be entered pursuant to Florida Statute 702.10, as amended, which permits a foreclosing party to request that the Court enter a Final Judgment of foreclosure without even a motion for summary judgment being filed and without a trial.

The statute essentially reverses centuries of civil jurisprudence to place a burden of proof on a homeowner to show that they have valid defenses to a foreclosure when a foreclosing party files for what is called an Order to Show Cause. The hearing on the Motion, which is conducted without the protections of Rule 1.510 of the Florida Rules of Civil Procedure and without the protections of decisional law, permits the foreclosing party to request the entry of summary judgment without a Motion for Summary Judgment even being filed, and without requiring the foreclosing party to comply with any of the summary judgment requirements of Florida law. We have taken the position that the Statute is unconstitutional.

Yesterday, a Key West, Florida Circuit Judge dismissed a case filed by Bank of New York as the claimed trustee of a Countrywide securitization. The action was never properly served, and the “Amended Notice of Action” filed by BONY’s successor counsel did not comply with the verification requirements for Florida foreclosure cases.

The same Judge also yesterday assessed attorneys’ fees against BONY as the claimed trustee of a Bear Stearns securitization in another case incident to a prior dismissal of that case. The dismissal was entered as BONY failed to comply with a prior Order of the Court which had dismissed the prior action due to BONY’s noncompliance with discovery and Pretrial Orders of the Court, which dismissal conditioned any re-filing of the case on full compliance with the prior discovery and pretrial orders. BONY re-filed the case without any such compliance in violation of the prior dismissal Order. Florida case law permits attorneys’ fees to be assessed against a foreclosing party whether the dismissal is with or without prejudice, and even if the dismissal is not a ruling on the merits.

A Colorado District Judge has entered an Order enjoining a non-judicial foreclosure sale incident to a foreclosure filed by BONY as the claimed trustee of (another) Bear Stearns securitization. As our readers know, in Colorado, the precipitating procedure for a non-judicial foreclosure is the filing of a request for an Order Authorizing Sale (OAS) in a Rule 120 proceeding. Any ruling from that proceeding which results in a sale date being set may be challenged by the filing of a separate action, and there is no res judicata or collateral estoppel effect of the prior Rule 120 ruling on the subsequent action.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com