Updated: Dec 10, 2019
On November 15th, I tried a foreclosure case against U.S. Bank in Hillsborough County and won this judgment for my homeowner clients. Foreclosure dismissed!
U.S. Bank filed its original lawsuit in 2009, alleging that the bank could not find the original promissory note. Remember, when you close on your home, you sign a note and a mortgage. The note obligates you to pay the loan and the mortgage secures your home as collateral.
Early in the litigation, the bank tried to win a summary judgment and filed a sworn affidavit stating under oath and penalty of perjury that the bank could not find the original promissory note. Years into the litigation, the bank purportedly found the original note and dropped its count to re-establish a lost promissory note. After years of litigation, on November 15th, the case finally gets called up for non-jury trial.
At trial, the bank did not have any competent evidence that the bank possessed the original promissory note at the inception of the case. Remember, under Florida law, the bank must prove that it had legal standing to foreclose at the inception of the case and at the time of trial.
At trial, the bank's witness attempted to testify that the bank was in possession of the original note at the inception of the case. On voir dire (in a non-jury or a "bench" trial, voir dire is when the lawyer asks questions of the testifying witness during the opposing side's questioning of the witness, usually to lay a basis to challenge the admission of evidence. You know we lawyers have to make everything sound much more complicated than it is!), the witness testified that there may be out-of-court records demonstrating this, but that they were not brought to court. I objected to this line of testimony and the Court sustained the objection.
I asked the Court to take judicial notice of an affidavit filed by the bank in which the bank stated under oath and penalty of perjury that it did not possess the original note. After the Court agreed to take judicial notice, I was able to impeach the bank's witness with the affidavit.
At the conclusion of trial, in my closing argument, I argued that judgment should be entered in favor of the homeowners as the bank failed to prove standing at the inception of the case. I primarily relied on the Second District Court of Appeal's holding in Corrigan v. Bank of America, N.A., 189 So. 3d 187 (Fla. 2d DCA 2016). The Court ultimately agreed that the bank failed to prove that it had possession of the original note at the inception of the case, and accordingly entered this judgment in favor of my homeowner clients.
If you are in foreclosure, you need a lawyer who isn't afraid to get in the ring and fight your case for you! Stand up for yourself and fight!
Thanks for reading.
Best Holiday Wishes,
Foreclosure Defense Attorney Tampa Bay Florida