Some excerpts from the report…
The facts aren’t unusual: In 2008, a couple in Reddick defaulted on a home mortgage and the bank pursued foreclosure. The couple contested the action.
But the outcome defies the usual pattern. The defendants prevailed at a non-jury trial and, to date, have been allowed to keep the home.
According to the attorney handling the homeowners’ case, this didn’t happen because of some ground breaking ruling or unexpected turn of events during litigation. Rather, it’s a sign that judges are starting to hold more plaintiffs accountable in foreclosure actions.
Since May 2008, the Reddick couple has owed $482,170 on their home. Chase Home Finance, LLC filed a foreclosure lawsuit in August 2008. The case went all the way to a bench trial before Circuit Judge Brian Lambert in August 2010. The couple had a private attorney.
One month before the trial, however, U.S. Bank National Association, the new lender, and therefore the new plaintiff, filed an affidavit acknowledging the loss of the original promissory note.
It had been delivered to the law offices of Marshall C. Watson in October 2008 via Federal Express, then “placed in a secured and locked vault” in Fort Lauderdale.
The note had been “inadvertently lost or destroyed,” according to an affidavit. The note could not be located.
This past December, Lambert issued a final judgment in favor of the homeowners, saying that the plaintiff had failed to meet its burden of proof of showing that Chase — the previous lender and plaintiff — had standing to bring the lawsuit. He also ruled that U.S. Bank failed to meet its burden of proof re-establishing the mortgage note or that it was the owner of the note at the time of trial.
“I think the judges have been giving the banks the benefit of the doubt with these foreclosures and I think they’ve learned a valuable lesson with that,” he said. “You have to make them prove up their case and I think judges are starting to do that.”
Roger S. Rathbun, an attorney with the Law Offices of Marshall C. Watson who pursued the Evans case on behalf of U.S. Bank, expressed caution when it comes to these types of judgments.
“I wish the tenants luck,” he said Friday. “I don’t expect the banks to give them a free house. I expect the bank to re-file the case. Even if the foreclosure was invalid, I can file under a different equitable theory and still take the property.”
You can check out the article in full here…