Duke v. HSBC Mortgage Services, LLC,
Case No. 4D09-5183

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order granting summary judgment of foreclosure against the homeowners, who were husband and wife. At the time HSBC filed its complaint in the trial court, it attached a mortgage showing the Dukes as the borrowers and a company called First NLC Financial as the lender. HSBC alleged in the complaint that it owned the Dukes’ note and mortgage pursuant to an assignment. However, HSBC failed to attach the assignment to its complaint. HSBC later filed a notice of assignment and attached a copy of the assignment that was executed after HSBC filed the complaint. The trial court granted summary judgment for HSBC.

On appeal, the Fourth DCA held that the discrepancy between the attached mortgage showing First NLC Financial as the lender and HSBC’s allegation in the complaint that it owned the note and mortgage created a genuine issue of material fact regarding ownership of the note and mortgage that precluded summary judgment. Citing BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010), the Fourth DCA noted that exhibits control over allegations in a complaint, and therefore the at the time of filing the complaint, the attached mortgage listing First NLC Financial as the lender controlled over HSBC’s allegation in the complaint that it owned the note and mortgage pursuant to an assignment. The court reversed the order granting summary judgment.

Valencia v. Deutsche Bank National Trust Company, 4D09-3297
June 22, 2011

The Fourth District addressed an appeal of an order granting summary final judgment in favor if the lender in a foreclosure proceeding.  The complaint had alleged December 1, 2003 as the date of the borrower’s default. The mortgage required that the lenders provide the borrowers written notification of the default that included the action necessary to cure the default, and gave the borrowers thirty days to comply. The lenders were unable to produce a hard copy of the letter that was actually sent to the borrowers. Instead, the lenders produced two possible letters that could have been sent to the borrower. Both letters contained a cure date of October 8, 2003. The actual letter was found by the borrowers after the summary judgment hearing. It contained a different cure date and a different amount owed than the complaint and the two hard copies produced by the lender.  The Fourth District held that there was a genuine issue of material fact because of these differences, and reversed the order of summary judgment.

One of the most prominent disputes amongst divorcing couples is the division or disposal of the marital home. And, due to the current economic conditions, homes have been almost impossible to sell and many have fallen into foreclosure. A status most would try to avoid; but may not always be the case when resentful behavior plays a factor, and when we act on emotion instead of sound judgment.

After a long term marriage and subsequent divorce, a trial court had awarded title, for purposes of selling a multimillion dollar home, to the former wife. The house had gone into foreclosure during the divorce proceeding, but the former wife had a buyer for the home. The ex-husband appealed the house being put in the wife’s name. He had a right to appeal as the order concerned entitlement to property. Although the former wife had a buyer for the marital home, the former husband was willing to loose the house to foreclosure rather than sell it and divide its worth. The ex- wife could not get a title company to give clear title, based on the pending appeal. Moreover, the buyer she had, pursuant to their contract, was able to walk away from the deal, if clear title was not obtained, after a certain date.

Typically, the appeals process can be lengthy, sometimes lasting even years. Transcripts of the proceeding below must be ordered and presented to the appellate court, all sides must prepare and submit briefs, once the briefing process is completed, and it’s reviewed by a three- judge panel. Understanding the importance of time, our firm successfully motioned the appellate court to expedite the appeal on behalf of the former wife. In a little less than two months a decision was rendered. We had won the appeal and received a per curium affirmance, which means the appellate court upheld the trial court’s order. The house will not be lost to foreclosure and the closing is now set to go forward.

My job as an appellate attorney is to be knowledgeable in black-letter law, the appeals process and in writing effective appellate briefs; and concisely explaining why the appellate court judges should or should not affirm the circuit court’s decision. Seeking my expertise, as an appellate attorney, allowed for the former wife to silence her ex-husband’s attempt to be spiteful and prevented foreclosure of the marital home.
Robin Bresky, Law Offices of Robin Bresky