Comments on: WHOA! Florida Judge Wipes Out Homeowner’s $207,000 Mortgage!

By: Andrew

Andrew — Sat, 05 Jun 2010 15:01:09 +0000

“You are filing pleadings in court every day and you don’t even know what’s going on with the case,” she told Huffman, the HSBC lawyer. “In no other species or kind of law would that be remotely acceptable, or frankly, anything short of malpractice. But somehow in Foreclosure World everybody thinks that is just fine, that you can know absolutely nothing about your files and walk in here and ask judges for things left and right without even knowing what’s going on.”

This has got to be my favorite quote to date…TY Judge Bailey

By: Roy Beach

Roy Beach — Thu, 27 May 2010 17:53:06 +0000

Stupendous man you are probably right. Absence a showing of wilfull and malicious disobedience of the court’s order, a “fine” of $400+K is probably extreme.Then again any sanction must be of such a nature as to cause the offending party to sit up and take notice so as to ensure the bad conduct is not repeated. Let’s hope it stands up on appeal.

By: Stupendous Man - Defender of Liberty - Foe of Tyranny

Stupendous Man - Defender of Liberty - Foe of Tyranny — Tue, 25 May 2010 20:36:54 +0000

As I consider this further I’m not sure the decision will hold up on appeal, if it is appealed. If I were HSBC I certainly would appeal.

A mortgage is an equitable instrument. As a matter of equity the judge has authority to cancel the mortgage.

A note is different. I’m thinking it is a matter of law. I don’t know that she has authority to declare the note null and void as a matter of law. (this appears in the transcript on page 17)

An appellate ruling could be along the lines of affirming on the mortgage, but reversing on the note. This would give HSBC an unsecured note. In that case a BK could perhaps wipe away the unsecured obligation under the note.

I’ve been fighting foreclosure for 2.5 years. I’ve heard a lot in that time about “bad law” being written by pro se litigants submitting inarticulate, muddy, imprecise pleadings. This may be a case of the trial court writing bad law through an order that over steps its authority.

If I’m in error here I’d sure like to hear from others that can point out the error in my interpretation.

By: Stupendous Man - Defender of Liberty - Foe of Tyranny

Stupendous Man - Defender of Liberty - Foe of Tyranny — Tue, 25 May 2010 20:17:39 +0000

Florida statute 673.3091(2).

By: Stupendous Man - Defender of Liberty - Foe of Tyranny

Stupendous Man - Defender of Liberty - Foe of Tyranny — Tue, 25 May 2010 20:08:49 +0000

Although not covered in the transcript the bond was required under UCC 3-309(2).

By: Arpad

Arpad — Tue, 25 May 2010 19:37:09 +0000

Hi Everyone,
What a great news in this case. I see the tide is slowly turning in our direction and i hope more and more Judges realize what is going on in the Courtrooms every day. BTW, anybody knows what FL. statutes the defense used to get the Judge to order the posting of the Bond??

By: Patricai

Patricai — Tue, 25 May 2010 14:01:06 +0000

WAY TO GO!!! TAKE THAT YOU THIEVES!!! CONGRATULATIONS TO ORLANDO ESLAVA!

By: Willow

Willow — Tue, 25 May 2010 13:55:54 +0000

It’s about time. If the court issues an order then it needs to be complied with. Failure to comply with a court order is considered contempt of court and usually results in sanctions or even jail time. In this case, the attorney for the bank was present at a previous hearing and was granted an okay for the foreclosure. However, because there may be issues of whether this particular bank was the actual creditor who had the right, title and interest to foreclose, the court required the bank to post a bond.

That bond was an insurance indemnification just in case there was a “real” creditor out there who also could lay claim to right, title and interest in the property. That real creditor, if they came forward, could sue the homeowner for the money that was owed on the promissory note (debt) because now that the property was sold to a bona fide purchaser, they could not satisfy the debt with the confiscation of the property. The bond posted by the bank would have indemnified the defendant and thus, there would be money available to compensate the real creditor who held the note.

When the bank sold the property but failed to post the bond, they were in contempt of court. Thus, the court was free to sanction the bank for defying a court order. The sanction was to dismiss the banks action for foreclosure with prejudice and to award the defendant with the property. At this point, what the defendant needs to do immediately, is to file an action for quiet title against ALL OTHER CREDITORS, whether known or not. Once he can obtain the title to his property FREE and CLEAR against all others who may lay claim, he will be able to sell the property to another buyer and deliver a clear title.