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  • L.Fitzgerald  On February 15, 2010 at 10:39 PM

    BAC FUNDING- The End of Summary Judgment For
    Foreclosures In Florida?

    February 15th, 2010 ·

    Every so often, the appellate courts issue opinions that dramatically change the legal landscape. BAC Funding v. US Bank is just such an opinion, because no longer will banks and lenders get a free shot at foreclosure on concocted evidence and mere possession, even of original documents. The full text of the opinion can be found here, but it should be brought to the attention of every judge in every foreclosure case across the state.

    The opinion is full of great direction, but the bottom line is the appeals court has made it clear that it is no longer permissible for Plaintiffs attorneys to come marching into court with documents alone….even if they are original documents. Throughout the foreclosure crisis, Plaintiffs attorneys have been permitted to ignore the basic rules of evidence and just enter in documents without any explanation of how they came into possession….this will now change and Plaintiffs will be required to have both the original documents and some evidence to support how they came into possession of the documents–something they will have a difficult time doing in many cases.

    Here is language taken directly from the opinion:

    ■U.S. Bank filed a written response to BAC’s motion to dismiss. Attached as Exhibit A to this response was an “Assignment of Mortgage.” However, the space for the name of the assignee on this “assignment” was blank, and the “assignment” was neither signed nor notarized. Further, U.S. Bank did not attach or file any document that would authenticate this “assignment” or otherwise render it admissible into evidence. (That last sentence is key because it now requires Plaintiffs to “authenticate” their filings.)

    ■Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank. (Although the bank had introduced an assignment, the court is saying that assignment should not have been the basis to grant summary judgment because it was not properly admitted into evidence.)

    ■When a plaintiff moves for summary judgment before the defendant has filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.” Settecasi v. Bd. of Pub. Instruction of Pinellas County 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) As these cases show, a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.
    ■Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor. (This language is key because it directs the courts to demand an evidentiary basis for documents, not just the documents themselves.)

    ■Regardless of whether BAC answered the complaint, U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose. See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (The key word here is “validly”. The Plaintiff cannot just show up in court with the documents, it must validate them and authenticate the documents for the court to consider.)

    ■The incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank’s response to BAC’s motion to dismiss did not constitute admissible evidence establishing U.S. Bank’s standing to foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note and/or mortgage. (The Plaintiff must introduce authenticated, properly introduced evidence to proceed.)

    The Court Recognizes That Insuring Proper Title To Property Will Be a Real Challenge in Years to Come….

    Given the vastly increased number of foreclosure filings in Florida’s courts over the past two years, which volume has taxed both litigants and the judicial system and increased the risk of paperwork errors, it is especially important that trial courts abide by the proper standards and apply the proper burdens of proof when considering a summary judgment motion in a foreclosure proceeding. Accordingly, because U.S. Bank failed to establish its status as legal owner and holder of the note and mortgage, the trial court acted prematurely in entering final summary judgment of foreclosure in favor of U.S. Bank. We therefore reverse the final summary judgment of foreclosure and remand for further proceedings.

    And so, in this brand new, and as yet, unpublished opinion, the legal landscape for foreclosures changes forever!

    A very important Appeal decision ..opinion of this decision posted from the Matt Weidner Esq.Blog .

    Its a wonderful new world !!

  • Larry Rubinoff  On February 16, 2010 at 1:44 AM

    Mr. Fitzgerald:
    Great comment with some very, very good information. I would like to republish it as a Feature Post but will need the actual link to Atty. Weidner’s blog. Please email it to me. Everyone, especially those in Florida need to know this.

    The more exposure we can give it the more chance for judges around the state to read it and then begin to act justly and accordingly.

    Larry Rubinoff
    Editor

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