Practice Area: Foreclosure
Date: October 30, 2015
Outcome: Final Judgment for Plaintiff Upheld!
At trial it became apparent that as a result of this loan being transferred multiple times prior to suit being filed the loan payment history was less than reliable. I made the executive decision not to introduce it into evidence. The borrower had passed away and there was no viable estate from which the Plaintiff could collect the debt. The exhibits I entered into evidence were the 5-year Interest Only Adjustable Rate Note, the Mortgage, the Assignments, the default letter, the escrow summary of the present Plaintiff demonstrating the amounts paid for taxes and insurance. No evidence was submitted by the defense that any payments had been made against the principal amount of the loan. Judgment was entered in the amount of $400,000, the principal amount of the interest-only loan, plus escrow amounts.
At the trial and on Defendant's Motion for Rehearing, the Court explained that standing existed because of the facts introduced into evidence that demonstrated the Plaintiff had to retrieve the Original Note from an earlier foreclosure before filing suit in this case, and that since the default occurred in the first five (5) years of the obligation, that amount due was the principal amount of the loan.
After trial, the non-borrower spouse appealed the issues of (1) Standing; and (2) Whether there was competent substantial evidence to support the Final Judgment. At Oral Argument, counsel for the Defendant admitted the Plaintiff had standing. The Justices focused on the fact that the Note was sufficient evidence as to the amount due and owing where the breach occurred during the first year of the loan. I was successfully able to distinguish Wolkoff, a Second District case where no evidence was admitted as opposed to our case where there was sufficient evidence. After Oral Argument before the Second District Court of Appeal, the Second DCA quickly affirmed the trial court's Final Judgment with a Per Curiam opinion.