FL 3rd DCA: Foreclosure Fraud – Once There’s a Loan Mod, Bank Can’t Win on Original Note Alone

No. 3D16-1553
Lower Tribunal No. 13-5691
________________

Francisco Pijuan, et al.,
Appellants,
vs.
Bank of America, N.A.,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Eugene J. Fierro, Senior Judge.

Appellants, defendants below, Francisco, Luisa, Francisco Jr. and Sonia Pijuan (“Pijuan”)1 appeal the final foreclosure judgment entered in favor of appellee, plaintiff below, Bank of America (“BOA”). After conducting a bench trial on BOA’s foreclosure complaint, the trial court found that BOA’s predecessor, Countrywide Home Loans, Inc., had entered into a loan modification agreement (“LMA”) that constituted a novation of the original loan documents. Notwithstanding this finding (which BOA has not cross-appealed), the trial court entered a foreclosure judgment against Pijuan that failed to consider the effect of its novation finding on the foreclosure case pled and proven by BOA. We conclude that, under the facts of this case, once the trial court made the finding that the LMA replaced the original loan, then BOA could not prevail without having pled and proven a breach of the LMA.

In this case, BOA pleaded a default under the December 2006 loan documents, and its trial proofs, including its evidence of compliance with all required contractual conditions precedent to acceleration and foreclosure, were based exclusively on Pijuan’s alleged breach of the December 2006 loan documents. BOA vigorously contested the effectiveness of the LMA, and certainly never pleaded or attempted to prove a default thereunder; nor did BOA plead or prove that BOA had complied with the conditions precedent to sue Pijuan under the LMA.4 Therefore, when the trial court concluded that the LMA constituted a novation, and that the LMA replaced the inconsistent provisions of the original note, BOA’s
foreclosure case – premised entirely on BOA’s allegations and proof that Pijuan breached the December 2006 loan documents, rather than the LMA – failed. Nowlin, 193 So. 3d at 1046. As argued by Pijuan’s counsel, upon finding that the LMA constituted a novation of the December 2006 loan documents, the trial court should have involuntarily dismissed BOA’s case.

We reverse the trial court’s final foreclosure judgment for BOA and remand with instructions to enter an involuntary dismissal of BOA’s case.

Reversed and remanded, with instructions.

Full opinion below…

~

4closureFraud.org

Comments
2 Responses to “FL 3rd DCA: Foreclosure Fraud – Once There’s a Loan Mod, Bank Can’t Win on Original Note Alone”
  1. Mary says:

    Same thing happened to me in Hawaii, the bank BOA refuses to admit the modification and even has the $20,000.00 fees charged to me on BOA’s own accounting records. Their accounting matches precisely my evidence documents of a 20,000.00 modification and the judges refuse to discuss the evidence. Im filing federal on all of them 4 law firms 3 judges and every other party that has conspired in fraud to take my home.

  2. al says:

    wow!! this must be another dimension ….. the 3rd court of appeal ruling against BOA favoring a home owner ???
    this is weird….must be a trick here or something…clearly they give a lot of hints to the BOA fraudclosure mill, but still weird……can’t believe this came from this crooked ,dishonest, unscrupulous, unprincipled, untrustworthy and corrupt, 3rd court of appeal ….

Leave a Reply