Tag Archives: Wells Fargo

Kurian & Thomas vs Well Fargo Bank: Final Judgement Of Foreclosure Decision Reversed By Florida’s Forth District Court

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT
January Term 2013
JESSY KURIAN and ANIL THOMAS,
Appellants,
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Appellee.
No. 4D11-3098
[June 5, 2013]
On Motion for Rehearing

Foreclosure Defense

MAY, C.J.
The bank has filed a motion for rehearing. We deny the motion for
rehearing, but withdraw our previously issued opinion and replace it
with the following.
Homeowners appeal a Final Summary Judgment of Foreclosure. They
argue the trial court erred in entering summary judgment because the
bank failed to refute their affirmative defenses. We agree and reverse.
The homeowners executed a note and mortgage with the bank.
Section 22 of the mortgage—titled “Acceleration; Remedies”—stated, in
pertinent part:
Lender shall give notice to Borrower prior to acceleration
following Borrower’s breach of any covenant or agreement in
this Security Instrument . . . . The notice shall specify: (a)
the default; (b) the action required to cure the default; (c) a
date, not less than 30 days from the date the notice is given
to Borrower, by which the default must be cured; and (d)
that failure to cure the default on or before the date specified
in the notice may result in acceleration of the sums secured
by this Security Instrument, foreclosure by judicial
proceeding and sale of the Property . . . .
The bank filed a Complaint on March 31, 2009, to foreclose the

mortgage, alleging the homeowners defaulted on December 1, 2008.
Attached to the Complaint was a letter, dated March 25, 2009, notifying
the homeowners that the mortgage was in default and the bank had
already accelerated all sums due. The homeowners answered and
asserted affirmative defenses. Affirmative Defense 14 alleged that “all
conditions precedent to filing this foreclosure action were not in
accordance with the ‘acceleration’ terms and conditions set forth in the
promissory note and mortgage.” It is this affirmative defense which we
address.
The bank moved for summary judgment and attorneys’ fees, and filed
an Amended Affidavit as to Amounts Due and Owing. The affidavits in
support of summary judgment did not address the allegations of
Affirmative Defense 14. The homeowners filed affidavits in opposition,
which attested that they never received notification of the acceleration of
the mortgage or note, were never contacted by the bank about the
acceleration, and never waived their right to receive notice. The trial
court entered Final Summary Judgment in favor of the bank. The
homeowners now appeal.
The homeowners argue the trial court erred in entering summary
judgment because the bank failed to refute their affirmative defenses,
which were legally sufficient. More specifically, they argue that the bank
did not meet the requirements of section 22 of the mortgage by failing to
provide sufficient notice of default and opportunity to cure. The bank
responds that the affirmative defenses were legally insufficient because
they were not pled with the particularity and specificity required by
Florida Rule of Civil Procedure 1.120(c). We have de novo review. Frost
v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009).
“When a party raises affirmative defenses, ‘a summary judgment
should not be granted where there are issues of fact raised by the
affirmative defenses which have not been effectively factually challenged
and refuted.’” Alejandre v. Deutsche Bank Trust Co. Ams., 44 So. 3d
1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co.,
516 So. 2d 983, 984 (Fla. 4th DCA 1987)). The movant must disprove
the affirmative defenses or show they are legally insufficient. Id.
The bank relies on Godshalk v. Countrywide Home Loans Servicing,
L.P., 81 So. 3d 626 (Fla. 5th DCA 2012), to challenge the sufficiency of
the homeowners’ affirmative defense. In Godshalk, the court found the
affirmative defenses insufficient where the homeowner “merely denied
that ‘any of the notices required by the document’ had been sent.” Id. at
626. Here, the homeowners’ affirmative defense denied compliance with

the conditions precedent required by “the ‘acceleration’ terms and
conditions set forth in the promissory note and mortgage.” The
“acceleration” terms are located in section 22 of the mortgage, and
require notice of any default and opportunity to cure thirty days prior to
acceleration. The homeowners sufficiently pled the bank’s failure to
satisfy conditions precedent regarding the pre-acceleration notice
requirements of the mortgage. Frost, 15 So. 3d at 906 (“Although the
bank argues that the defense did not refer to any language from the
mortgage, the bank cites no authority which requires the defense to
contain such a reference.”).
At the hearing on the Motion for Summary Judgment, the bank never
argued that the homeowners’ affirmative defenses were insufficiently
pled. Rather, the bank argued that the letter attached to the Complaint,
indicating that acceleration had already occurred, satisfied the notice
requirements set forth in section 22 of the mortgage. The bank never
refuted the homeowners’ affirmative defense of lack of thirty days’ notice
of the default and opportunity to cure prior to acceleration as required by
section 22 of the mortgage.
The letter attached to the Complaint was a notice that acceleration
had already occurred and was dated only six days prior to the filing of
the Complaint. It did not advise of the default, provide an opportunity to
cure, or provide thirty days in which to do so. The letter attached to the
Complaint did not satisfy section 22’s requirements.
The bank argues for the first time on appeal that section 15 of the
mortgage provides that notice is deemed to have been given when sent by
first class mail. However, the bank never established that any notice was
sent by first class mail thirty days prior to accelerating the mortgage.
For these reasons, we reverse and remand for further proceedings.
Reversed and Remanded.
TAYLOR and CONNER, JJ., concur.
* * *
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Marina Garcia-Wood, Judge; L.T. Case No. 09-18657
CACE 02.
Scott Levine, Weston, for appellants.

Michael K. Winston and Dean A. Morande of Carlton Fields, P.A.,
West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.

Original Source 

Comments Off

Filed under Uncategorized

Cromarty vs Wells Fargo: Undated Blank Endorsement Did Not Negate The Affirmative Defense Of Lack Of Standing

foreclosure defense vertict

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2013

WILLIAM A. CROMARTY and MAUREEN CROMARTY,
Appellants,

WELLS FARGO BANK, NA,
Appellee.

No. 4D11-4435

[April 17, 2013]

GERBER, J.

The borrowers appeal from the circuit court’s final summary judgment of foreclosure in the bank’s favor. The borrowers argue, among other things, that the bank failed to negate their affirmative defense of lack of standing. Specifically, the borrowers argue that the note’s blank endorsement was undated and the bank’s evidence was insufficient to establish that it held the note and was entitled to enforce the note at the time it filed suit.

We agree with the borrowers’ argument as to standing and reverse. See Hall v. REO Asset Acquisitions, LLC, 84 So. 3d 388 (Fla. 4th DCA 2012) (“While the note introduced had a blank endorsement and was sufficient to prove ownership b y appellee, who possessed the note, nothing in the record shows that the note was acquired prior to the filing of the complaint. The endorsement did not contain a date, nor did the affidavit filed in support of the motion for summary judgment contain any sworn statement that the note was owned by the plaintiff on the date that the complaint was filed.”). We conclude the borrowers’ other arguments lack merit.

Reversed and remanded.

You can view the original document here.

Comments Off

Filed under Uncategorized

Judge Oral Arguments- Zervas vs. Wells Fargo

Zervas v. Wells Fargo Oral Arguments:

These were some of the most knowledgeable judges I have come across. They take the case and tear it down bit by bit.

It was ruled that there was no evidence that the trust authorized the foreclosure

 

 

“Eugene Dominko, the defendant in this mortgage foreclosure action, appeals a final summary judgment of foreclosure. Because Wells Fargo failed to establish that no answer which the defendant might file could present a genuine issue of material fact regarding whether Wells Fargo complied with the condition precedent of providing pre-suit notice of default, we reverse.

In February 2010, Wells Fargo filed a mortgage foreclosure complaint against the defendant. Wells Fargo alleged that it was the holder of the note and mortgage, that the defendant was in default under the loan, and that all conditions precedent to the acceleration of the note had occurred. The defendant did not file an answer to the complaint. Wells Fargo did not, however, move for a default. In April 2010, Wells Fargo filed a motion for summary judgment. The next month, Wells Fargo filed the original note, endorsed in blank. Wells
Fargo later filed an Amended Affidavit as to Amounts Due and Owing. The Amended Affidavit did not mention the conditions precedent.”

Here is the rest of the ruling summary

 

Below are a few quotes from the oral arguments that were interesting.

Center Judge: “If the trust doesn’t give Wells Fargo the right to litigate, their out of court.”

Below the judge is basically saying normally a mortgage default is very simple. If you get a loan from someone and you stop payment you don’t have much defense. He goes on to make the point that if the bank does not keep good public records of the loan, it complicates the procedure.

Center Judge: “Well you would agree with me that few cases are simpler than a mortgage foreclosure when you don’t layer in assignments and… If you have a loan from “Smith Mortage” to “Joe Blow”and Smith holds the paper and Joe Blow defaults, Joe Blows basically only defense is payment. It’s a very simple process, but when lenders bring upon themselves assignment upon assignment and they bring in entaties they call noimaniees and they don’t record assignments on the public records, and an assignment of a mortage is from a different party then from an assignment of a note, and you don’t have a trust instrument, it creates a problem.”

Zervas Foreclosure Lawyer: “And I respectfully submit Judge, that it wasn’t that difficult to do this one right. They knew they did not have an assignment of mortage, it was filed when they had none. They after
aquired it, their charged to know that.”

Center Judge: “And see that the problem. Some borrowers counsel believe that the obligation is going to go away. In almost no circumstances that’s going to happen but it does have to be filed correctly.”

Zervas Foreclosure Lawyer: “It would be nice to know you are paying the right party.”

 Below is a awkward excerpt between the judges and the Wells Fargo Lawyer.

(Happens at about 18:50 in the video)

Judge: Now it’s not hard to know, if you do mortgage foreclosures, that you need to comply with the acceleration clause…and that was never done by Wells Fargo, was it?

Well Fargo Lawyer: It wasn’t raised as an affirmative defense your honor-

Judge: No, no, wait- My question is Wells Fargo never complied with the acceleration clause, did they?

WFL: I can’t say because it wasn’t raised and I did not ask my client to provide me with a demand letter.

Judge: Now, hold on. Your firm specializes in mortage foreclosures, right?

WFL: Yes, your honor.

Judge: And every mortgage has an acceleration clause right?

WFL: Yes your honor.

Judge: And so before you file the mortgage you send out a certified mail letter saying: this is the date of the default, this is what you owe to bring it current, and you have 30 days or we are
going to potentially file a foreclosure.

WFL: Absolutely.

Judge: That’s a condition precedence, and in your complaint you captioned a paragraph, either 4 or 5, saying bold print conditioned precedant…and you – I mean your firm, said that “all conditions
precedent had be met.

WFL: Correct.

Judge: So as an officer of the court, the signatures on that complaint, represented that all conditions preceded had been met.

WFL: Correct.

Judge: And it wasn’t true, was it?

WFL: No it was true!

Judge: Oh it was true?

WFL: Aa and I can’t- I don’t-

Judge: -Do you have the acceleration letter?

WFL: I haven’t seen the letter-

Other judge: Are you really suggesting that you don’t know?

WFL: No no no I’m suggesting that we have when our client-

Other judge: Listen to me. Your not telling us that you don’t know whether or not the acceleration letter was sent or not. I hope your not saying that.

WFL: No I’m saying that when we get a referral it shows us on the information that we received from the client-

Other judge: You know it was not sent, don’t you?

WFL: …I’ve never in my 15 years, had a case where a demand letter was not sent.

Judge: Do you know, Judge Black has asked you, was it sent in this case or not? Yes, or no? That’s a very simple queston.

WFL: No I understand that, but I have not seen it because it wasn’t raised as an issue in the case.

Other Judge: So you saying that because it wasn’t raised you don’t know the answer to that question. That’s your answer?

WFL: I would say that I’ve relied on our business records, on the referral, that stated when the demand letter was expired. They told us the demand letter was sent and when it expired.

Judge to the left: On the standing issue, if I understnad one of this courts earlier verdicts in 2011 opitions, I think the options is what taylor said equitable standing. So as I go through the record on this case, the motions, the affidavids that were filed at some point, which document would you tell me to look for that would say that Wells Fargo was the owner and holder of this note on a date that precends the date of the complaint. Is there a document that I could look at, or a series of documents you would direct me to?

WFL: There is no specific document that says that.

Originally, Wells Fargo won in court the previous year but the foreclosure lawyer working for Zervas managed to overturn the initial ruling. It was proven in court that Wells Fargo didn’t establish that a answer by Zervases may have filed could be proven.

In short, this is a good ruling for any borrowers in trouble by unlawful banking practices.

Comments Off

Filed under Uncategorized

PUBLIC SERVICE ANNOUNCEMENT: There’s CASH Available, BUT the Deadline to Collect is Drawing Near!

According to an official announcement that was made by Florida’s Attorney General Pam Bondi on September 24, 2012, over 167,000 Florida borrowers who lost their home to foreclosure between January 1, 2008 and December 31, 2011, may be entitled to their piece of a $1.5 BILLION pie. The $1.5 billion pie is the bi-product of a $25 billion national mortgage foreclosure fraud settlement that was reached with five of America’s largest servicers of mortgage loans including: Bank of America, Wells Fargo, JP Morgan Chase, Citi and GMAC/Ally. These banks comprised a majority of the servicers of the mortgage loans that were the subject of this massive fraud investigation that was spearheaded by the Federal Government along with the attorney generals of 49 states, plus the District of Columbia.

In April of 2012, the settlement went into effect and it allotted over $1.5 billion dollars made available to over 2 million borrowers throughout the country who fell victim to this fraud and had their foreclosure serviced by one of the five parties named in the settlement. Floridians were specifically earmarked for $170 million dollars of this massive payout. The Federal Government now wants to turn that money over to you, the victims of this mass fraud. However, there is a catch. Although the money is there for the taking, you cannot just sit back and wait for the money to roll in. You must TAKE it. Forms were previously sent to all borrowers who may potentially have a claim and those forms MUST BE SUBMITTED BY 5 pm on JANUARY 18, 2013. Yes, you read that right, the deadline is tomorrow! You must take action now to determine if you have a claim to that large sum, which keep in mind, is just sitting there for the taking. Over the last several months, documentation should have been provided to those who may be qualified. Specifically, the national settlement administrator sent out notification packets to all eligible borrowers across the nation. As it pertains to potential Florida borrowers specifically, packets were sent out containing a letter from Florida’s Attorney General, a claim form, instructions and answers to commonly asked questions, from the time the settlement was reached back in April through October 12. The exact amount for the payments made to each borrower have not been predetermined and will depend solely on how many borrowers actually assert their right to the proceeds and submit these forms by January 18, 2013. Thus, if you do not elect to act now, your money will be going to someone that does.

If you received these forms, it is strongly advised that you fill them out now and submit them by tomorrow, January 18, 2013. If you remember receiving these documents but now you can’t find them, do not worry, you can file these forms online at www.nationalmortgagesettlement.com. If however, you are not certain if you even qualify, remember, it can’t hurt to ask. If you fall into the latter group and have questions or need help filing your claim, you should contact the settlement administrator immediately, toll-free, at 1-866-430-8358, or send questions by email to administrator@nationalmortgagesettlement.com.

If you lost your Florida home to foreclosure between January 1, 2008 and December 31, 2011, act now to see if you have any money waiting with your name on it! DO NOT MISS THE DEADLINE!! In these tough economic times, money can be hard to come by. You should take full advantage of any and all financial support that may be owed to you. During your Orlando, Florida foreclosure process, the bank desperately wanted your money, now is your chance to get some of it back. As of January 16, 2013, less than half of the estimated 167,000 people in Florida eligible for the $170 million payout have responded. Act now, or someone else will!

For any questions you may have concerning other possible rights you may be entitled to or for any help with your mortgage foreclosure, call our experienced Legal Team here at The Freedom Law Firm today. Our Orlando foreclosure defense attorneys are here to HELP defend your home! The Consultation is FREE, Just Call! 407-883-2618

Comments Off

Filed under florida foreclosure, Orlando Foreclosure Attorney, Orlando foreclosure defense

Banks are Taking Longer to Sell Foreclosures

 

foreclosure lawyer orlando

According to new data from RealtyTrac Inc., a real estate information company that publishes the largest database of foreclosure, auction and bank-owned homes, certain banks are known for taking much longer to sell foreclosed properties than others. For example, Bank of America takes almost two months longer than EverBank Financial to sell a foreclosed property.

In addition, Bank of America has taken longer to sell its properties this year than last year. Last year it took Bank of America 5.3 months on average to sell a foreclosed property and this year they are averaging 6.7 months for foreclosed properties. Wells Fargo, Deutsche Bank, Ocwen Financial, and Citigroup have also fallen behind in selling their foreclosed properties when compared to last year. According to RealtyTrac, all of these banks took at least 20% longer to sell their foreclosed properties compared to last year (2011).

Many things can happen when an abandoned home sits on the market for a long period of time. These foreclosed properties can rack up association fees, repair costs, overdue property taxes, neighbor complaints, code enforcement fines, and more. The longer a foreclosed home in Florida sits on the market, the harder it is to sell because the deeper it falls into disrepair.

If you’re at risk of having your Orlando home foreclosed on, don’t wait until it’s too late to contact an Orlando foreclosure defense attorney at The Freedom Law Firm. Call 407-883-2618 to get in touch with one of our Orlando foreclosure defense lawyers. We can slow down the foreclosure process and even give you more time to make your payments so that you can stay in your Orlando home as long as possible. Give us a call – we want to help you and your family!

Comments Off

Filed under florida foreclosure, Orlando Foreclosure Attorney