Example of Homeowner Winning in Sarasota Florida

Ryan Torrens, Esq., a Florida attorney who apparently does his homework, posted this article on his website.

see Summary Judgment for Homeowner – Don’t give Up

For those of you in foreclosure who may wonder if you have any rights, the answer is yes, you do! I recently won a summary judgment against a foreclosing bank in a foreclosure case in Sarasota, Florida.

The bank was attempting to foreclose on a loan modification, which is not a negotiable instrument. [e.s.] See Bank of New York Mellon v. Garcia, 2018 WL 3286488 (Fla. 2d DCA 2018). The bank contended that it had standing to foreclose on the loan modification by an assignment of mortgage. However, the assignment of mortgage did not transfer the note, but only the mortgage. An assignment of mortgage that only assigns the note, not the mortgage, does not convey standing to the Plaintiff. See Peters v. Bank of New York Mellon, 227 So. 3d 175 (Fla. 2d DCA 2017).

Due to this defect, I moved for summary judgment on behalf of the homeowner. The Court agreed that the bank could not prove standing in the case and that the homeowner was entitled to summary judgment as a matter of law. Accordingly, the Court entered this summary judgment in favor of my client.

If you are being foreclosed on, don’t give up. Stand up and fight for your family and your home. The banks are used to getting away with everything, but you have rights too. This case is just one example of a homeowner who stood up and fought, and won!

Thanks for reading.

Best,

Ryan Torrens

Foreclosure Defense Attorney

EDITOR’S NOTE: The only thing I would add, for clarification, is that the reason for the finding of lack of standing is that an assignment of mortgage without the debt is a nullity.

The assignment or indorsement of the note to the assignee of the mortgage is a transfer of “title” to the debt on its face.

Hence the presumption that is used, sometimes erroneously, that the claimant is the owner of the debt, note and mortgage or the authorized agent of such a party.

But it is often true that neither the assignor of the mortgage nor the previous “holder” of the note actually owned the debt nor were they authorized representatives of any party who could claim ownership of the debt, note or mortgage.  Accordingly, no effective transfer occurred as to the debt, note  or mortgage.

The fact that all this happened after a modification is worthy of mention. Most modification agreements contain intentional obfuscation of the true parties in interest and do not qualify as negotiable instruments nor do they effectively try to transfer anything other than the mortgage. Without a separate instrument transferring the debt from an owner of the debt (or an authorized agent of the owner of the debt) the modification  does NOT create standing.

The reason why the modification agreement does not make any express reference to the debt or the note is that doing so would be a direct or implied representation of ownership of the debt — a statement that would be patently untrue in most cases.

8 Responses

  1. Reblogged this on AXJ USA NEWS.

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  2. So help me here. So any of us with a modification from a previous servicer are basically in a stand still unless the lawyer wants top do a summary Judgement. Dis this case mean these servicers have no chance in court?

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  3. Reblogged this on Deadly Clear and commented:
    “But it is often true that neither the assignor of the mortgage nor the previous “holder” of the note actually owned the debt nor were they authorized representatives of any party who could claim ownership of the debt, note or mortgage. Accordingly, no effective transfer occurred as to the debt, note or mortgage.”

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  4. negotiable instruments follow the “four corners” rule – all that is to be is contained with the document and not contigent of anything extrinsic.

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  5. Bob G- this is the first time I’ve seen mention of a modified mortgage not being a negotiable instrument also.
    When you think about it, the servicer is the one who is modifying the mortgage, and they aren’t the ones who wrote the original mortgage. Those people are long gone.
    A negotiable instrument has to be static rather than filled with ever-changing amounts due, fluctuating timelines, balloon payments etcetera.
    Can’t sell non-negotiable mortgages to investors, they wouldn’t know what they are buying.

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  6. How costly is it specially the Propert might not have much equity

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  7. anyone know where to find the legal authority that says that a modified loan is not a negotiable instrument?

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  8. They are ALL nothing more than lowlife debt collectors on UNSECURED debt.

    Liked by 1 person

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