FL 3rd DCA Bank of New York Trust v Rodgers | Ex Parte Motions to Substitute Party Plaintiff

“This was a foreclosure case that advanced to trial. The presiding judge thought the bank presented insufficient evidence at trial to prevail. But two appellate judges disagreed based on an Order substituting plaintiff that was entered ex parte, without notice, and without hearing. Hence, according to these two judges, evidence to justify foreclosure is never necessary – the plaintiff obtained the Order of substitution, and since the Order included gratuitious fact-findings (included by the plaintiff’s attorney), the plaintiff need not present evidence at trial.”


Ex Parte Motions to Substitute Party Plaintiff

I’m hot under the collar right now as I read a 2-1 decision from a three-judge panel from Florida’s Third District Court of Appeal. The decision stems from an involuntary dismissal entered in favor of a homeowner, at trial, because the plaintiff failed to prove the requisite elements of its case. In the words of the trial court judge, dismissal of the foreclosure case was required “as a result of Plaintiff’s failure to establish its status as the owner and holder of the applicable Note and Mortgage with standing to bring suit.”

In the appellate court, however, two judges decided the lower court erred by so ruling. The third judge on the three-judge panel vehemently disagreed, but his opinion was relegated to a dissent.

Oddly, the majority began its analysis of whether the plaintiff proved its case at trial by discussing an interlocutory Order which permitted the plaintiff to substitute as the plaintiff in the lawsuit. That Order provided:

The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, is the real party in interest and proper Plaintiff in this action, and;

The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, is hereby substituted for JPMorgan Chase Bank, formerly known as Chase Manhattan, as trustee, residential funding corporation, as attorney in fact, as the proper Plaintiff in this action and the style is amended as reflected on this Order.

In the view of the majority, “because there was no denial or defense raised in defendants’ pleadings concerning this finding, the judgment under review cannot be permitted to stand for that reason alone.”

This is an absolute bombshell, folks. It’s a major, major trap for unsuspecting homeowners (especially those proceeding without counsel), one that the Florida courts have, perhaps unwittingly, been routinely and systematically permitting for many years. Before I explain why that is, and what we must all do to avoid it, let’s start out by explaining why the majority’s opinion is, respectfully, terribly misguided.

Check out the rest of Mark’s analysis here…

Copy of the opinion below…




Bank of New York Trust v Rodgers

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4 Responses to “FL 3rd DCA Bank of New York Trust v Rodgers | Ex Parte Motions to Substitute Party Plaintiff”
  1. lvent says:

    They are sneaky…the bank in my case actually “sold” the loan to a debt collector months after the foreclosure lis pens was filed….the receiver for the property told us they did that because the bank did not have the note..there was no assignment in the foreclosure….and the debt collector proceeded to record 4 assignments at the recorders office reconveying the loan back to the original plaintiff…sounds like a RICO ACTION right…? And get this..one of the bank attorneys used to be an assisstant to the Illinois STATE AG’s office…! Jillian Cole ..she is aiding and abetting the theft of my property by First Midwest Bank and Bayview llc/Bayview loan servicing…..I hope they have to give me clear title to my property and they all go to prison…! First Midwest also recorded the mortgage as over 1 million dollars….the loan was for half of that…these crooks need to be brought down…if you never properly recorded your lien because you committed massive fraud and you were trying to cover up your crimes by not recording….you should lose all legal right to collect……there is no legal fix for fraud as my story proves….they just keep committing more crimes….this has to stop…if the proper plaintiff did not commence the fraud closure or never had title to it they should be dismissed with prejudice by the judge and clear title goes back to the defendant…the law is the law…i believe there will be a day of reckonong for these judges and their criminal banker and lawyer friends …

    • lvent says:

      I just want to add that the unsecured debt was put in a REMIC TRUST 2010-12 Series by Bayview the debt collector….and U.S. BANK now claims to be the Trustee….all done by the magic of fraud!!!!! I cant find an attorney in Chicago who will touch this ….imagine that!

      • Shelley says:

        I am pretty sure you have copies of The Remics have failed the Remics have failed and the Oppenheim Report. Here is one Appellate court that has crooks for judges. WOW! Most of the Appellate courts are correcting the crimes, this one enabled it just like the local and district courts do in Washington state.

      • lvent says:

        Yes Shelley I do…thank you..I have boxes full of notes and articles pertaining to the biggest robbery of our wealth in history…The only thing to do here is revolt on all of their debt and fake elections..Write in our picks in 2012…don’t vote in any straw man polls…the straw polls are rigged..! Everyday people need to run for office….everywhere…like Matt Weidner is doing..!

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