The Wadsworth case clearly shows that the appellate courts are requiring the trial court to scrutinize the claims and filings of would-be forecloser and that things like notice of acceleration and the right to cure are important enough to reverse summary judgment. This is directly contrary to the rulings of many judges who say that the lack of notice is NOT a basis for granting a motion to dismiss. It can be argued that if it is enough to defeat a motion for summary judgment, it ought to be sufficient to dismiss the complaint that does not allege the existence of the loan, the financial injury and the compliance with paragraph 22, with a copy thereof.
The Beaumont decision is especially interesting because it deals with a rather obvious alteration of documents by Bank of America or its “successors” or lawyers. Or I would not be surprised to learn that LPS was involved in this one. They changed the due date and foreclosed. The trial court disregarded the defense that the note was altered and said it wasn’t enough that they alleged these facts on information and belief. The appellate court that might be true, but the documents of records clearly raise the issue themselves.
Filed under: CASES, CORRUPTION, evidence, foreclosure, foreclosure mill, GARFIELD GWALTNEY KELLEY AND WHITE, Mortgage, Motions, Pleading, Servicer | Tagged: alteration of instrument by lender, Bank of America, Beaumont, Florida appeals, MOTION TO DISMISS, paragraph 22, summary judgment, Wadsworth |