FL 2nd DCA: Focht v. Wells Fargo Bank, N.A. – Foreclosure Judgment Reversed Based on Genuine Issue of Material Fact of Wells Fargo’ s Standing

Supreme Court

“We note that the supreme court has not applied this standing principle in the exact context presented in this case. And we question whether, in light of the ongoing foreclosure crisis in this State, the supreme court would adhere to this principle in cases in which a plaintiff has acquired standing by the time judgment is entered.  Accordingly, we certify the following question as one of great public importance:”

CAN A PLAINTIFF IN A FORECLOSURE ACTION CURE THE INABILITY TO PROVE STANDING AT THE INCEPTION OF SUIT BY PROOF THAT THE PLAINTIFF HAS SINCE ACQUIRED STANDING?”

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FL 2nd DCA: Focht v. Wells Fargo Bank, N.A. – Foreclosure Judgment Reversed Based on Genuine Issue of Material Fact of Wells Fargo’ s Standing

This is what it has come to in Florida.

Up first is the Concurring Judge ALTENBERND, only because he has to:

ALTENBERND, Judge, Concurring.

I concur in this decision because existing precedent requires me to do so.

A requirement that the plaintiff prove that it owned or possessed a promissory note at the commencement of a foreclosure action may have made sense during earlier periods of economic downturn, but in this era of securitization of mortgage debt and computerized banking, it has proven to be a restriction that often provides a windfall to a borrower who can prove no harm by the fact that the plaintiff obtains possession of the note after the filing of the lawsuit but before the entry of judgment. So long as there is no dispute that the borrower received the money and defaulted on the note, the law should not use “standing” to require the dismissal of a lawsuit. If the defendant raises this issue at the inception of the lawsuit this affirmative defense may warrant a delay in the proceedings while the plaintiff establishes that it can enforce the note. But especially when the original note in default has already been filed in the court record, the law should generally permit a plaintiff to obtain a judgment of foreclosure if the plaintiff establishes that it has a right to enforce the note at the time it seeks to obtain a final judgment. See generally Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618 (Fla. 5th DCA 2010). The courts have erroneously transformed what should be a defendant’s affirmative defense, permitting the defendant to avoid a judgment of foreclosure by a plaintiff who is a stranger to the note, into a jurisdictional prerequisite that must be established by the plaintiff to avoid a dismissal of the action.

There appears to be no genuine dispute in this case that Ms. Focht borrowed about $110,000 from BNC Mortgage, Inc., in 2002, using her duplex as collateral. She signed a promissory note and executed a mortgage. She did not make the payment due in September 2007 or any payment thereafter. As a result, Wells Fargo filed this foreclosure action in January 2008.

Ms. Focht filed an answer pro se. It included twenty-one affirmative defenses. Many of those defenses were frivolous—contributory negligence, basic rights under Article I, section 2 of the Florida Constitution, improper forum, and piercing the corporate veil. Read generously, I do not believe this answer raised a defense of standing.

In July 2008, Wells Fargo filed the original promissory note with the court. Only then did Ms. Focht raise a defense of standing. At that time and for the last five years, there has been no practical risk that any other entity might claim ownership of or a right to enforce the note. Certainly, Ms. Focht is not claiming that she is making timely payments to some other putative owner of the note.

But for the precedent, there would appear to be no reason to reverse this case. Admittedly, in this case and in numerous other cases the financial institutions have brought these problems upon themselves by the complex methods of securitizaton and their own sloppy recordkeeping. Admittedly, Ms. Focht and many other Floridians believe they were misled by mortgage brokers and others into signing notes and mortgages that were not appropriate for their financial circumstances. Admittedly, some borrowers become confused and frustrated because they do not know whom to contact to discuss their financial difficulties when they fall behind on a note. But none of these concerns are solved by creating a jurisdictional prerequisite of “standing.”

Ms. Focht cannot demonstrate that she has been the victim of any legal harm in this case arising from Wells Fargo’s delayed possession of the note. In fact, it appears that she has lived for years in this duplex during the pendency of the foreclosure proceeding, collecting rent from the tenants in the other unit, while making no payments on the note and while forcing the lender to advance $22,213.35 toward taxes or other escrow expenses.

The trial courts have been overwhelmed by foreclosure filings. In many of these civil lawsuits the defendants, under a duty to plead in good faith, should be expected to admit that they received the money, signed the notes and mortgages, and failed to make the payments. They may often have legitimate affirmative defenses, but the delayed production of the original note and mortgage in a case where the note and mortgage are in default should not justify a dismissal of the legal proceeding. Presumably, our mandate requires the dismissal of this foreclosure action, which in turn will undo the foreclosure sale. Ms. Focht will regain possession of her property and apparently continue her free use of the duplex while the lender continues to make advances to cover the expenses typically paid from escrow. Our certified question of great public importance is dispositive of this appeal and worthy of consideration by the supreme court.

Full opinion below…

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4closureFraud.org

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Focht v. Wells Fargo Bank, N.A.

Comments
17 Responses to “FL 2nd DCA: Focht v. Wells Fargo Bank, N.A. – Foreclosure Judgment Reversed Based on Genuine Issue of Material Fact of Wells Fargo’ s Standing”
  1. Mark Bowen says:

    A friend said to me recently:

    “I’m Focht, you’re Focht, we’re all Focht!”.

  2. Mark Bowen says:

    Effective January 1, 2011, the Florida Supreme Court amended rule 1.420(a)(1) to allow “a claim, or any part of an action or claim,” rather than just an “action,” to be voluntarily dismissed.
    Plaintiff “Bank’s” violated that original rule many thousands of times throughout the state prior to that amendment (to avoid having to amend the Initial Pleadings and pushing Summary Judgments that the courts were all too eager to grant). Did “the Court” sanction even one? Not to my knowledge; all in a day’s work. After all, those senior judges who are not beholden in any way to the people in the state by virtue of their retirement status and lack of reelection constraints do whatever their Supreme Court Masters tell them to do.

    Then on May 9, 2013, in response to the claim by petition filed in IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.490, which stated “a significant number of mortgage foreclosure cases are pending in Florida’s trial courts and it is estimated that 680,000 foreclosure cases will be filed over the next three years”, the Supreme Court of Florida amended 1.490(c) to almost exactly mirror what the 20th Judicial Circuit Court in Lee County had been doing for years. The rule originally provided that “No reference shall be to a magistrate without the consent of parties.” Of course, this meant that the court needed prior consent from the parties to hand the case over to an attorney appointed as magistrate to conduct certain types of hearings including Summary Judgment hearings where in most cases those magistrates would recommend a judge enter a Final Order of Judgment in favor of whatever corporate person was trying to steal someone’s home.

    That Court intentionally violated that rule thousands of times to the extreme prejudice of those “deadbeat borrowers” who are made to feel like criminals as soon as they would enter the (civil?) Rocket Docket courtroom controlled by usually no fewer than four or five heavily armed Sheriff’s deputies (scare tactics anyone?).

    But the Court, in its benevolence did allow for an objection to be made by those few defendants that understood what was going on, only to discover that when the magistrate admitted on the record that he/she had no jurisdiction, proceeded to take just enough jurisdiction to hand the case to one of those senior judges who never had any difficulty entering orders even in the face of such overt and abject tyranny and obvious biased oligarchical corruption. Courts throughout the state violated that rule tens of thousands of times, and so, in an attempt to heal that open wound, the Supreme Court amended the rule and swept it all under the rug.

    Now we find ourselves once again staring down the barrel of a fabricated crisis where these public servant’s think it’s again acceptable to amend the rules of civil procedure to ensure that these new financial weapons of mass destruction (aka mortgage backed securities and their subsequent unregulated derivative products) continue to wreak havoc on our global economies, designed to benefit only the elites. The rest of us can go screw ourselves into oblivion.

    Mark my words, this is another con job. The Supreme Court Chief Commander, God of the Judiciary probably asked for this question to be certified. The end result will just be another response to a foreclosure crisis that could have been averted from the beginning if these judicial officers would have adjudicated the tens (hundreds?) of thousands of cases in this state that came before them in the past six years, in accordance with the law rather than choosing instead to appease their corporate masters. Courts of “equity”, my arse.

    My advice: DISBAR THE FLORIDA BAR

    • Wolverine says:

      Great comment Mark Bowen
      The courts are nothing more than a collection agency for the Banksters, just like the IRS.
      The foreclosure victims should be infuriated by the behavior of these dishonorable judges and purported attorneys that run this treasonous crime factory. THESE are the people that must be brought to justice. When we grow a pair and start arresting them…only then, will we start the change. They are no different than the people they incarcerate every day in criminal forums. They have failed to uphold their oath. They have broken the law. Worse, they have destroyed families and marriges.They are guilty, PERIOD. I don’t care who gave the order. They need to taste their own medicine. the world will be a better place. Wake up people!
      Tyranny is upon us.

      Victim 634,949

    • Incognito123 says:

      I don’t think I could have said it any better had I tried!!!

  3. John Lewis says:

    First off – Standing is NOT an affirmative defense…it is required to even stand before the Court…..Period!

    • John Lewis says:

      I tried to paste wording from the most recent Ohio case, please note that this case cites florida case law to justify its holding, — FHLMC v Schwartzwald — note just go to google scholar to pull up the case — as it is a must read, as it is directly on point, that standing para 18 “..is a jurisdictional requirement ….”

    • Correct, it is like a demurrer or 12(b)(6).

  4. BOBBI SWANN says:

    Didn’t anybody that read this case understand what those Judges were saying???? The law was okay for the good ole days but it’s not applicable for this century??? WTF??? The law is the law – period. And we have these so-called judges sitting on benches at the Court of Appeals and the Supreme Court for the state of Florida and they ‘rant’ this shit? Oh yeah, the judgment was reversed but their little concurrence attached to to the order is mind blowing. Am I the only Floridian on this forum reading this case and pissed as hell? Who do these judges think they are that they can just re-write the laws to fit the ‘times’! Please join me all other fellow Floridians and let’s just get rid of these flagrant mishaps that abuse the legal system. It’s time for the courts to have clean hands.

    • j Alonzo says:

      We can try, but we have been taken over. Our courts are just like the ones in third world countries. They just dont care. Judges do as they please and work for the banks! The only ray of light is, if you have a good attorney that will really work your file and not just rubber stamp it along and you catch the banks in fraud and its proven. The bank loving judge has no choice, but to dismiss it, but in most cases the Sheeple are screwed.

  5. DAVID CHARLES says:

    I just read that case again and I have to say I personally could care less about the issues of notes and notices and appraisals or deeds.What most people(Lawyers included)dont understand is (EXAMPLES)Did Wells Fargo notify her when they sold her loan?Or assigned it ?Although it was a void assignment.What do the closing docs look like and if she had originals are they similar because mine are very different and I never got a copy or was able to look them over at closing.My broker had done at least 12 loans for me and Ive owned many homes and trusted her,also I was a “premiere client”at the time and had been banking with Wells for 10 years prior,my son and mother having accounts at Wells.My mother’s loan is with Wells and I sent at least 10 friends to my broker.I left the closing with docs with no signatures,when i saw them they had fake names and it has a date of signing as nov 9 yet the notary signed and stamp is the 14th and dont they usually stamp things proving that the person signing is there in front of them?There is too much to list but you see where it going,I dont truthfully know if this started with the Brokers and escrow but do know the banks/lenders who never Lent anything besides their name to things are perpetuating this crime.Why do they need document services that for 80.00$will give you a fabricated title package signatures and all.Its a sick sign of the time==CORRUPTION== thats whats really going on.Willing to give docs to anyone who doesnt believe this goes down not just mine have friends as well.Its a sham

    • Laura Petracek says:

      Dear Attorney Alison,
      I live in California, and would appreciate a referral to an attorney. I have been successfully fighting my foreclosure for four years…but now another Court date looms and my attorney doesn’t think we’ll win…e.g.that the Judge will rule we don’t “have legal standing.”
      I think I have a chance of winning if I take this case all the way…
      Thank you,
      Laura

  6. Attorney Wendy Alison Nora says:

    Dear Rebecca,
    It breaks my heart to read this. If you want me to look at your documents to see if, as I expect, some of the documents used to take your home are forged, you can send me an e-mail at accesslegalservices.info@gmail.com. I am a lawyer in Wisconsin and Minnesota, so you would need a California lawyer to get any relief, but I can at least try to point you in the right direction. I cannot charge you a fee, and I can, perhaps, connect you with people I know in California, if that helps.
    Stay strong and true.

  7. DAVID CHARLES says:

    The deal with Wells Fargo is you think your loan is with Wells Fargo,then if you try to talk to them about refinancing,or renegotiating,or modifying they will tell borrowers that they cant do that because they have to go by the “Investor Guidelines”and if like me you say “INVESTOR”what is that?So you are and were getting misleading info because 98% of the time that loan is recorded in Wells name with no assignments at all to any trust of any kind.Until you are in default,then they assign it and record it but it is 6,7,8 years past the cut-off dates in there own agreements and that makes it void as per the Trust laws so yes they are Creating this and Perpetuating this while bold face lying to there own “CLIENTS”and that makes zero sense.The thought is also these so called “Trust “were never funded from the get go and even if so lets see some actual ACCOUNTING from this people.These things if real are so over insured and that they made huge money any ways and sold these Non asset backed securities multiple times then have the BALLS to take peoples homes using fraudulent documents and robo-signers and it all stinks.SO YES WELLS FARGO SHOULD PASS SOME OF THAT WEALTH FORWARD.
    Again they would rather go the extra mile to shut consumers down than do what (if these were legit deeds/notes)would benefit all parties and as god is my witness I have seen all of this and more and the sad truth is unless you go the distance as the homeowner you will not know who the players are and what lengths they will go to defending their LIES.Good luck

    • Attorney Wendy Alison Nora says:

      Extremely well said. Thank you.

    • than you dave the entire business in a nut shell. you should be on facebook with us. start with fraudclosure fighters, and wells fargo sucks. there is even a blog talk radio show every week. yes it is terrible. I found out about this about 4 years ago 2009 when after a job los sI asked WF to apply for a hamp loan. that’s when I found out about the investor and the securitization. I was told not to pay. never , ever late on my mortgage /rent since having my own place since 1987 that along time sorry no deadbeat here. I was told not to pay . I had to be 3 months late to be able to apply for the hamp loan. I wanted to save my home how aggravating. now I have been in foreclosure almost 2 years. The judge keeps giving them more time to produce discovery, my lasthearing was tues. I suppose you can put it in the win column he didn’t set a trial date so I am ok. I am in florida judicial

      • DAVID CHARLES says:

        You know as I do sitting at your computer researching and trying to convey this very complex chain of events and frauds to people without coming across like a complete nut job,or try to rationalize your stand on it without being considered a deadbeat that just wants out of a loan they cant afford.I have no revolving credit obligations,had many loans paid in full and know what a Blue ink note and deed look like with a stamp that reads” Paid In Full”in red. Have had those from Wells also but dealing with this gets so depressing and it makes people think that theres no hope and you see how the court have no love for homeowners/borrowers,no justice.A few cases hear and there getting some play but they will just lobby and thing lean towards the bank end of story.I dont think folks can wrap their heads around this.

  8. Rebecca says:

    I’m still very lost and really confused with all this legislation terms
    God help me see I’m back in my car it’s been so long that I had a home march 29 2011 lockout after 22 years. Only through out all this hell I learned and was able to see the wrongs this year jam and feb 2013 plus found the exclusive grant deed note that I was told fanny Mae owned then Freddy Mac then sorry out of country never know. My divorce lawyer court ordered this. Hell I was the only one doing every thing asked plus to save our home. What upsets me Cfpb said foreclosure started one to two years prior I even missed a payment ?? How could this be. Well if that HUD approved program did their job they would of found what I saw this year. Only what was I too late. Hey I’m one dam person who had more then to handle try to recall divorce 1995 then court order 1998. So I’m lost and cry saw my youngest son only to have him turn his head away(
    They took very pic of my first grandchild off his laptop she’s not yet two years old(. These were the only pics we had and now look I’m sleeping back in my dam car wtf is going on cause I don’t understand any of this. As what I thought we would go home only it would be Abby’s home. Now shit there’s no housing help in Southern California the lady I spoke to at motel said she was told 7 year wait for housing help. God fix this state help people instead of putting them out to pasture older adults this is so sad heartbreaking depressing what about California wrongful Foreclosures that turned into fraud thift greed ?

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