Some great cases coming down the pike

Foreclosure/Priority: bank entitled to relief from judgment where junior lienholder foreclosed on subject property and Court ordered sale of property free and clear of all claims by bank – Bank of America, N.A. v. Kipps Colony II Condominium Assn., Inc., Case Nos. 2D14-858, 2D14-4436 (Fla. 2d DCA Dec. 9, 2015) (reversed and remanded)
Foreclosure/Standing: mortgagee not entitled to summary judgment against junior lienholder where junior lienholder’s motion to dismiss challenging standing had not yet been set for hearing – Statewide Homeowners Solutions, LLC v. Nationstar Mortgage, LLC, Case No. 4D13-3467 (Fla. 4th DCA Dec. 9, 2015) (reversed and remanded)
Foreclosure/Standing: bank not entitled to summary judgment where genuine issue of material fact existed as to whether note had been endorsed prior to filing complaint –Morris v. Deutsche Bank Nat. Trust Co. as Trustee for HIS Asset Securitization Corp. Trust 2006-HE1, Case No. 4D13-4049 (Fla. 4th DCA Dec. 9, 2015) (reversed and remanded)
Foreclosure/Standing: bank not entitled to final judgment of foreclosure where bank’s expert admitted he had no idea when allonge endorsements were created or affixed to the note – Hepworth v. Wells Fargo Bank, N.A., Case No. 4D13-4056 (Fla. 4th DCA Dec. 9, 2015) (reversed and remanded)
Foreclosure/Oral Modification: borrower not entitled to judgment based upon alleged oral modification to mortgage, as any modification would have been subject to Statute of Frauds – Ocwen Loan Servicing, LLC v. Delvar, Case No. 4D14-763 (Fla. 4th DCA Dec. 9, 2015)
Foreclosure/Issues of Fact: mortgage servicer not entitled to summary judgment, as genuine issues of material fact existed as to whether Fannie Mae owned note at time of complaint and whether certain payments made by borrower were properly credited to account – Gomes v. Suntrust Mortgage, Inc., Case No. 5D14-1668 (Fla. 5th DCA Dec. 11, 2015) (reversed)
Foreclosure: testimony of amounts due under mortgage foreclosed was inadmissible hearsay because witness’s testimony based on amounts in draft judgment, which was not a business record admitted into evidence – McMillan v The Bank of NY Mellon, Trustee, Case No. 4D14-514 (Fla. 4th DCA Dec. 2, 2015) (affirmed in part, reversed in part).
Claim of Lien: HOA’s claim of lien for past due assessments does not relate back to filing of declaration absent specific relation-back language in declaration – U.S. Bank NA, Trustee v Grant, et al., Case No. 4D14-979 (Fla. 4th DCA Dec. 2, 2015) (reversed and remanded).
Jurisdiction: trial court had jurisdiction under Rule 1.540(b)(1) to set aside notice of voluntary dismissal filed by inadvertence or mistake – JP Morgan Chase Bank, NA v Kehle, Case No. 4D14-1631 (Fla. 4th DCA Dec. 2, 2015) (reversed and remanded)
Substitute Service: process server complied with substitute service statute requiring he “inform the person of their contents” by advising defendant’s husband he was serving a summons and complaint that needed to be responded to within twenty days – Mauro and Quinn v Wells Fargo Bank, NA, Case No. 4D14-1993 (Fla. 4th DCA Dec. 2, 2015) (affirmed)
Standing: subsequent owner of mortgage failed to prove standing to foreclose mortgage because testimony at trial not based on personal knowledge and no business records reflecting how or when mortgage was assigned entered into evidence – Gonzalez v BAC Home Loans Servicing, LP, et al., Case No. 5D14-3678 (Fla. 5th DCA Dec. 4, 2015) (reversed)
Automatic Stay: foreclosure action properly dismissed when filed after borrower filed bankruptcy petition and automatic stay was in effect – Select Portfolio Servicing, Inc. v Worobec, et al., Case No. 5D14-4022 (Fla. 5th DCA Dec. 4, 2015) (affirmed)
Standing: trial court erred by denying borrower’s motion for involuntary dismissal because lender failed to present documents and other competent evidence necessary to reestablish lost note, prove its standing to foreclose, prove amount owed on note, and did not prove compliance with condition precedent listed in paragraph 22 of mortgage -Figueroa v FNMA, et al., Case No. 5D14-4078 (Fla. 5th DCA Dec. 4, 2015) (reversed and remanded)

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