FL 4th DCA | Valencia v. Deutsche – Summary Judgment Reversed

This is another conditions precedent case.  In this case, the foreclosing entity could not locate the default letter and instead produced 2 possible letters that could have been sent.  The borrowers located the default letter after the summary judgment was entered but the date on that letter differed from the dates on the 2 possible letters submitted by Deutsche.  The amount owed also differed.  The court opined that the discrepancies created a genuine issue of material fact.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2011
JENNY VALENCIA and GALO VALENCIA,
Appellants,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Appellee.
No. 4D09-3297
[June 22, 2011]

PEGG, ROBERT L., Associate Judge.
Appellants seek reversal of a summary final judgment of foreclosure.

The complaint alleges that Jenny and Galo Valencia were delinquent in making the required loan payments due on December 1, 2003. The mortgage contained a written requirement that the borrowers be given written notice specifying the default, the action needed to cure the default, and the time period of thirty days to do so.

For some reason, the lender had not retained a hard copy of the letter notifying the borrowers of the default, but instead produced two possible letters that could have been sent. Both letters contained a cure date of October 8, 2003. Although the original letter was found by appellants after the summary judgment hearing, it contained a different date and different amount owed.

Before a court may grant summary judgment, the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, must “conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So. 3d 1211, 1213 (Fla. 4th DCA 2009) (citing Fla. R. Civ. P. 1.510(c)). The burden is on the moving party for summary judgment to show conclusively the complete absence of any genuine issue of a material fact. Id. The date of default alleged in the complaint and the dates referred to in the “cure letters” are not identical. This creates, by definition, a genuine issue of a material fact.

The order of summary final judgment is reversed and the case remanded for further proceedings.

Reversed and Remanded.

~

4closureFraud.org

h/t Alina

~

Valencia v. Deutsche

Comments
22 Responses to “FL 4th DCA | Valencia v. Deutsche – Summary Judgment Reversed”
  1. lizinsarasota says:

    This is not as significant as I thought, since summary judgment was not granted until 2009, and the appeal was timely within the original case. The main issue turned out to be that the bank sent out a default letter in late ’03, the owners cured the default, the owners defaulted again some months later, and the bank did not send out a second default letter. This issue was raised as an affirmative defense, and the bank then submitted two letters that they thought could have been sent out to the owners, but, as it turned out, neither letter was the actual letter the owners received. The bank never maintained that one of the letters they submitted was definitely the letter, so the issue of fraud is squishy at best.
    So, this decision begs the ultimate question: what are the courts going to do about “stale” summary judgments which had, as their foundation, fraudulent affidavits, fraudulent notary stamps, and other phony, trumped up documents? How can courts continue to uphold summary judgments based on fraud on the court???

  2. lies all of nit says:

    @redocs actually the where the note needs to move out it is beyond the note……the servicers did not loan the money. investors funded the loans. the true investor needed to be on the notes and mortgages to make all notes and mortgages valid. we need to move towards exposing the fraud. the note only proves who’s name is on the note and mortgage it does not show who actually funded the mortgages. the problem is the investors were given different docs then you and me. the docs they were given included them on the docs the notes and mortgages. ours did not. also the lax underwriting because they did not loan the money caused the lending of money based on appraisal fraud. please post below. for us to win this war people we all have to be on the same page fighting the same war. if we have some fighting wheres the note then some of us argue appraisal fraud, and then some of us argue closing fraud that our docs are fraudulent whom are they going to beleive please the same page. we need to win. these homes are not their homes to take

    http://stopforeclosurefraud.com/2011/06/22/read-letter-from-representative-elijah-e-cummings-to-darrell-e-issa-re-foreclosure-fraud-subpoenas/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ForeclosureFraudByDinsfla+%28FORECLOSURE+FRAUD+|+by+DinSFLA%29&utm_content=Yahoo%21+Mail

    http://4closurefraud.org/2011/06/23/speech-by-sec-chairman-mary-l-schapiro-remarks-before-the-american-securitization-forum-2011-annual-meeting/

  3. Lie all of it says:

    so let me get a show of hands. What happens when you call the bank because you are having difficulty paying your mortgage and the bank (for me wells fargo) tells u 2 stop paying. You have to be in eminent default before we can help you. Then they accept ur hamp app move ur file out of review for some unknown reason then the lose a fed ex file with all ur financial info then lie tothe fla ag, occ, and the senator richard nugent that the file was never moved and my fed ex apckage was never lost. Question raise ur hand am i still in default. Well i do not think so and that is what the judge will hear. My default letter is sitting amongst my other wells fargo liar letters. No one who is told to default is in default. So please america lets get the ball rolling here we need a national foreclosure mortitorium

  4. lizinsarasota says:

    Hang on a second. Why has it taken all this time for this appeal to be decided? What about time limits? What’s going on here?

  5. Beth says:

    Sick and Tired:

    That post showed the mentality of a typical bank/servicing company or similar employee. Or, maybe you’re one of their legal “grunts” who pulled a “JD” out of a Cracker Jack box.

    Why would you even bother to reading through this Web site? Don’t you have someone else’s life to make miserable? Aren’t you supposed to be working? Perhaps you’re reading through this site trying to pick up some helpful hints on how to defend your / your firm’s current sticky wicket? Likely, you became quickly confused and moved on to some simple porn, instead.

    You obviously are painfully ignorant about this topic (and probably many others…grammar included, apparently). Too bad electric shocks can’t be sent directly to via the Internet in order to discourage dumbaxx posters. By the way, your village has been calling – they want their idiot back. So, bet back to work…if that’s what you want to call it.

  6. Scotty Simpson says:

    We fell behind on our mortgage in March of 2011, because I lost my SSI payments and had to re-apply in November of 2010, an attorney sent us a letter dated May 5, 2011 and said we had 30 days to contact their office in writing, which we did on June 1st, 20011 and also called and spoke with them about catching up on our mortgage payments which we could have done. On June 2, 2011 the attorney filed a foreclosure petition in our County Court not even waiting for the 30 days to expire. The money we had saved to catch up on our mortgage now has to go to an attorney to defend us in court. How can they get away with doing this to people? Our home is worth over $100,000.00 and we just owe $32,000.00 on it. The good thing is we have a MERS problem on who owns our mortagage and will find out now who owns it.

    • housemanrob says:

      Scotty, You will find no owner because he is “the mad hatter, down a rabbit hole”. And one must remember……MERS is literally nobody in reality and will never have LEGAL AUTHORITY to own, foreclose, transfer a loan, or anything at all! Maybe they should admit what they are……….a skeleton in a bar ordering a beer and a mop!

      • Scotty Simpson says:

        MERS transferred our mortgage to Sun Trust Mortgage on May 10, 2011, before the attorney filled foreclosure on us on June 2, 2011.

      • housemanrob says:

        Does not matter Scotty, that MERS transfer or assignment cannot hold up LEGALLY!

      • Scotty Simpson says:

        Even Fannie Mae has sent us letters stating that they owned our mortgage..Does this break the CHAIN OF TITLE?

      • incognito123 says:

        Scotty, like Houseman said, they do NOT know who owns it because of MERS. MERS deliberately has destroyed probably 60-80 millions property records, and yours is one of them. No need to go further, but, for argument sake only, IF fannie says they own it, where is the assignment to them? Why does SunTrust claim to own it? WHERE is the COMPLETE chain of custody and FULL ACCOUNTING (they will never produce either, they don’t know chain, and accounting will show the fraud). Another thing to consider – look to see if you can find fannie or freddie suing anyone. I have not, and think about the reasoning. It is interesting if you think about it! In theory, who owns fannie & freddie, and then who owns that entity. interesting thought there, huh?

    • Readdocs says:

      Take them to court, who are trying to foreclose, and show the original wet ink note.
      Have the court order it, and then have the note, if they have possession, tested to
      insure it’s authentic.
      If the entity trying to foreclose does not have the original wet ink note then the court
      should find them as having no standing as they have no interest.
      There are several posters who are pretty adept in their advice and experiences that
      may be able to give you some of the details they’ve learned or used. Such as
      Tim Bryant.

      • lies all of nit says:

        @redocs actually the where the note needs to move out it is beyond the note……the servicers did not loan the money. investors funded the loans. the true investor needed to be on the notes and mortgages to make all notes and mortgages valid. we need to move towards exposing the fraud. the note only proves whom’s name is on the note and mortgage it does not show who actually funded the mortgages.

      • Readdocs says:

        I’m surprised with all of the fraud now exploding in the public, that investors are
        not flocking into court suing the pants off of the entities who talked them into
        investing into securitized mortgages.

      • Scotty Simpson says:

        Our Home Town Bank RCB Pioneer transferred out mortgage to MERS on April 20th, 2007, in july 2007, we started to pay Sun Trust Mortgage and then we fell behind in March of 2011, and on May 5th 20011 and a Law Firm from Oklahoma City sentd a 30 day notice to wrtie them and see if we can work thing out, on May 10, 2011 MERS assigned our mortgage to Sun Trust Mortgage, on June 1st, 2011 we sent the Law Firm 3 copies of the same letter in different envelopes requesting their help in keeping our home, then on June 2nd, 2011 the law firm filed a foreclosure on us in Kay County Court, not even waiting the 30 days given to us in their letter. The Law Firm filed with the summons a copy of the original note that our home Town Bank “without recource, pay to the order of Sun Trust Mortage, Inc.” and signed by Pioneer and Trust, Carol L. Jeffries, Vice President, not dated or notarized. We have letters from Fannie Mae that state they are the owner of our mortgage. IS THE CHAIN OF TITLE BROKEN HERE?

  7. Stupendous Man - Defender of Liberty, Foe of Tyranny says:

    Produced 2 possibble letters. Hmmm. This is similar to In Re Hill, which is the case that brought Countrywide to its knees.

    Look over on MSFraud in the forums for a few threads relating to “In Re Hill” and/or “recreated letters.”

  8. sickandtired says:

    so the borrowers admittedly stopped paying their mortgage in 2003 but because they were able to navigate the system and create enough diversion from that admitted fact they have lived for free for EIGHT YEARS and THAT is ok?? let’s keep bashing the ‘big bad sloppy lawyers’ and continue to protect these types of borrowers. disgusting.

    • l vent says:

      This is America, there are laws that protect the people and we do have rights whether you like it or not. No one should lose their home or business in the UNITED STATES OF AMERICA for being unable to a pay an UNSECURED DEBT. THAT IS JUST NAZI COMMIE BULLSHIT PROPAGANDA.. Besides, OUR HOMES ARE PAID FOR FREE AND CLEAR BECA– USE OF THE HUNDREDS OF TRILLION DOLLAR PONZI SCHEME. GOD BLESS AMERICA!!!!!

    • yvonne says:

      It is not disgusting when you consider all the emotional upheavals, the daily uncertainties, not knowing whether you should continue to upgrade your home or not and the list goes on; I hope they are paying their insurance and property taxes.

      They deserve a free house…and it is never free like I Vent keeps saying…there has been a lot of sweat equity and financial equity and lost of forced savings that is supposed to be secured in the equity of your home…that is now totally loss to many homeowners but regained through the foreclosures by the fraudsters and banksters…go figure before you start judging…your day may be on the horizon…

    • housemanrob says:

      Hey sick and tired. How much do the banksters pay you to write this totally uncreative, redundant bullshit! Minimum wage I’ll bet………….maybe, you should try a real job……..oh yeah, there aren’t any. No wonder you are sick and tired………..JOIN THE CLUB…it’s in the millions!

    • l vent says:

      YAHOO!!! This is great!!!! GOD BLESS AMERICA!!!!! DEATH THE FOREIGN MULTINATIONAL TYRANNY OF DEBT ENSLAVEMENT!!!!!

Leave a Reply