A Circuit Judge in Key West, Florida has denied a Motion for Summary Judgment for foreclosure filed by the Bank of New York (“BONY”) as “Successor Trustee” to Chase Bank, with the Judge ruling that genuine issues of material fact as to the chain of title to the mortgage which were unresolved precluded summary judgment for BONY. Although the attorney for BONY filed several documents in alleged support of BONY’s “right” to foreclose, the Judge, after examining the documents, found that there was a missing link in the chain of title to the mortgage between the time it was originated and the time that BONY allegedly became the owner of the mortgage. As such, the summary judgment of foreclosure was denied and the property is not being foreclosed.

            What we have found to be occurring all too frequently is that the Plaintiff in foreclosure cases makes an allegation of “owning and holding” the Note and Mortgage, but that when pressed, there is either no complete chain or a broken chain of title to the mortgage between the original lender and the Plaintiff in the foreclosure case. As such and without proof of a continuous and proper chain of title to an assigned mortgage, it will no longer be “business as usual” for foreclosure attorneys or their clients.

            One of the most outrageous examples of “lender” misrepresentation occurred in another case in Florida where the attorney for the foreclosing party, in response to a challenge by the borrower to the foreclosing party’s Motion for Summary Judgment as to whether the mortgage was ever assigned to the foreclosing party, represented to the Court that “we have filed the Assignment”. What was in fact filed was an Assignment which was blank as to and named no assignee, yet the attorney took the position that this blank assignment (which did not name the attorney’s client) provided legal standing to foreclose. Again, summary judgment was denied.

            The lesson to be learned here, especially with foreclosure lawsuits where the Plaintiff is obviously a member of the “securitized mortgage” gang, is that you have to diligently and carefully analyze ALL documents filed by the foreclosing party. We are finding in case after case that the foreclosing party (which, more often than not, is nothing more than a servicing company, or a “trustee” of some sort, and not the original lender) does not have the documents to demonstrate proper legal standing to even institute the foreclosure case at all. The problem is that foreclosure attorneys have been so used to no opposition that they continue to file bogus documents (or no documents at all) with impunity, and continue to make the kind of arguments such as that discussed here.

            Jeff Barnes, Esq., [email protected]