“We have repeatedly stated that a crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose,” Klingensmith wrote, citing cases from 2012 and 2015. “As always, a party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.”
“If you see someone trip and fall outside a supermarket, you don’t get to sue for damages caused by the negligence of the supermarket, if there was any. Only the person who slipped and fell could possibly have any action if they can prove negligence and damages. … At some point there must be official recognition that the banks are gaming the system improperly, fraudulently, wrongfully and so are their lawyers. Intentionally thrusting unauthroized foreclosures on an overburdened court without telling the Judge about the issues of standing might be more than just grounds for dismissal of the foreclosure.” — Neil Garfield
THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
The Appellate Courts are getting increasingly annoyed at the banks and servicers. Multiple opinions have been issued removing all possible doubt as to whether a party without standing can file a lawsuit. The answer is “no” and has been “no” for years.
Yet banks and servicers continue to violate this black letter standard routinely. In this case the court adopted some of the attitude of irritation revealed in the Jesinoski Supreme Court decision in January 2015. It appears, like the Jesinoski court, that the irritation of this appellate court extends far beyond the banks to the trial judges and bank lawyers.
Trial judges have been on notice of this requirement for years but continue to ignore it. It is up to the trial judge to satisfy the court that standing exists and not merely that a foreclosure has been filed. Trial judges have consistently erred by straying from the basic requirement of foreclosure, which is equitable in nature. Trial judges should be scrutinizing the paperwork regardless of whether the case is contested or not.
The reason that the banks keep doing it though is because statistically speaking, it works. Since the great majority of foreclosures are uncontested, there is nobody to raise the issue of whether the Plaintiff had standing. Hence if they lose a few as a cost of doing business, they can still push through thousands of foreclosures without standing to sue.
The OTHER mistake consistently made by the courts is conflating proof with allegations. If the trust, bank or servicer makes the right allegations, they still must actually prove it. There is no presumption regarding the allegations except in a motion to dismiss. Instead Judges have routinely applied nonexistent legal presumptions and arrived at the conclusion that somehow standing was established and that the Plaintiff had standing before the filing of the lawsuit — despite all evidence to the contrary — or as in this case, despite the lack of evidence.
Christiana Trusts appear to be among the worst offenders. What the 4th DCA is saying here is that they have had enough, we must return to the rule of law, and its time for lawyers, judges and everyone else to get on board. Unlike the trial judges who have seen their role as ministerial to “get the foreclosure done” the appellate court takes a longer view. If there was no standing at the commencement of the lawsuit, the judgment is simply void. Jurisdictional issues can be raised at any time.If the judgment was void, then so was the sale, despite Florida law to the contrary — because to say otherwise is to allow a business plan of fraud on the court in order to pursue an extreme sanction against the homeowner who frankly does not know who is entitled to payment, much less who can sue him or her for payments.
In this case Christiana failed to show that it was the owner of the debt — the most basic issue in suing. If you see someone trip and fall outside a supermarket, you don’t get to sue for damages caused by the negligence of the supermarket, if there was any. You can only sue if YOU slipped and fell. The banks know this, their lawyers know it but they are willfully ignoring it because the way our courts are working presently, the banks still win cases 20 to 1 because there is nobody showing up to contest standing or who even know what standing is. At some point there must be official recognition that the banks are gaming the system improperly, fraudulently, wrongfully and so are their lawyers. Intentionally thrusting unauthroized foreclosures on an overburdened court without telling the Judge about the issues of standing might be more than just grounds for dismissal of the foreclosure.
Filed under: foreclosure |