I just wrote a blog on Note Worthy Foreclosure Case for July in Florida check it out at
http://carollawsonpa.com/note-worthy-foreclosure-cases-in-florida-july-2015/
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
I don’t know about you, but, I’m seeing a trend and it is not good for the consumer. First the 4th DCA, then the 5th DCA and now the 2nd DCA rule Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer. I wonder do any of these Judges know that the Creditor law firms have direct access to the payment history and can go in and manipulate charges and how the money is applied? These banks changes servicers and law firms constantly- do you have any idea how many people have touched your loan history? I don’t.
The latest case is AS Lily LLC v. Harold Morgan it was appealed from Judge Campbell in Pinellas County by The Solomon Law Firm on behalf of AS Lily. The 2nd DCA found that incorporation or adoption of prior servicer’s records was allowed if the servicer verified them before using them as his own. WAMCO XXVII, Ltd. V. Integrated Electronic Environments, Inc., 902 So. 2d 230 (Fla. 2d DCA 2005).
Judge Campbell had relied on Glarum v. LaSalle Bank Natl. Ass’n, 83 So. 3d 780 (Fla. 4th DCA 2011).
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/May/May%2008,%202015/2D14-863.pdf
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
Le v. U.S. Bank, 5D14-578 (May 22, 2015) (Fla 5th DCA 2015)
US Bank’s Loan Payment History was used to establish the homeowner’s default and the amount of the alleged debt as is the case in all foreclosures. Often the histories contain information transmitted by one or more prior loan servicers, with only the current servicer present at trial. The question, in this case, was are these prior histories inadmissible hearsay within hearsay.
For a current servicer to establish the business records exception for information transmitted by a prior servicer under FL § 90.803(6), the testifying witness must not only testify that the current servicer verified the information it received, but must also have knowledge of the prior servicers’ record keeping procedures. See Kimberly Le v. U.S. Bank, 5D14-578 (May 22, 2015) (Fla 5th DCA 2015).
In Kimberly Le, this Court held that a payment history was admissible where the bank’s witness testified that her company’s loan boarding process (i) verifies the accuracy of the information it received from the prior servicer and (ii) confirms that the prior servicer’s entries conformed to industry standards. Id. at p.3. Unless the witness can testify to both elements, the information transmitted by the prior servicer does not satisfy the business records exception to hearsay.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
Morejon v. F&M Real Estate, Inc., et. al., 40 Fla. L. Weekly D823a (Fla. 2n DCA April 8, 2015). Unless a borrower voluntarily agrees to produce financial documents in advance of a mediation to allow a lender to evaluate possible mortgage options or options to foreclosure, court-ordered foreclosure mediations may become futile. The 13th Judicial Circuit’s interlocutory order requiring borrowers to produce private financial records for court-ordered mediation, based upon their Uniform Order of Referral to Foreclosure Mediation which requires that the borrower provide a completed financial disclosure form and any additional documentation requested by the plaintiff at least 30 days prior to the scheduled mediation was quashed by the 2nd DCA.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
The District Court of Appeal of Florida, Fourth District, reversed a mortgage foreclosure judgment, because the prior foreclosure action had been dismissed with prejudice by operation of law- an adjudication on the merits, barring the second foreclosure action based on the same default under the doctrine of res judicata.
The Court held that the mortgagee was required to provide a new notice of breach of the mortgage agreement to support its foreclosure complaint in the second action, which the mortgagee did not do.
A new default would not have barred the 2nd foreclosure action
http://www.4dca.org/opinions/April%202015/04-08-15/4D13-4825.op.pdf
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]
Clark v Statebridge (Fla. 6th Jud. Dist.) A trial court in the Sixth Judicial Circuit in and for Pasco County, Florida recently denied a mortgagee’s motion to dismiss a borrower’s complaint that alleged a violation of the Florida Consumer Collection Practices Act (“FCCPA”) for sending monthly mortgage statements directly to the borrower while the borrower was represented by counsel.
The trial court determined that the borrower had stated a cause of action for a violation of the FCCPA, as the TILA servicing rule requiring periodic statements (12 CFR 1026.41) does not preempt the FCCPA’s bar on directly communicating with borrowers in connection with the collection of a debt while they are represented by counsel.
The court held that the FCCPA was not preempted by the federal requirement to send a monthly mortgage statement to the borrower.
Clearwater Bankruptcy, 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761,
Phone: (727) 330-1627 email: [email protected]