Another case that goes to show how much FRAUD permeates our courts in Florida and how careless senior judges can be…
Florida’s Third District Court of Appeals had harsh words for a foreclosing bank’s counsel in Jade Winds Association v. Citibank, N.A., No. 3D11-275. In a decision released on Wednesday, May 4, 2011, the 3rd DCA not only reversed an order cancelling a foreclosure sale at the bank’s request, but called out the bank’s counsel for making “misleading” statements to the trial court, reminding the trial court that it was “free to impose appropriate sanctions” against the bank and/or its counsel on remand.
As the case’s name indicates, Jade Winds involved a three-party dispute between a homeowner/borrower, a mortgagor bank, a condominium association, with the latter two both filing claims for alleged defaulted payments from the homeowner. The condo association obtained a default judgment and took title to the property, then asked for, and received, summary judgment granting the bank’s claim to the property and a date for a foreclosure sale.
On the day the foreclosure sale was to occur, the bank filed an emergency motion to cancel it, supposedly to consider a loan modification for the homeowner. The problem was that the borrower’s mortgage loan couldn’t possibly be modified because the condo association had taken title from the borrower more than a year earlier. To make matters worse, the bank didn’t serve notice of its motion to cancel the sale on the condo association, the actual title holder of the property.
From the opinion…
Third District Court of Appeal
State of Florida, January Term, A.D. 2011
Opinion filed May 04, 2011.
Not final until disposition of timely filed motion for rehearing.
Lower Tribunal No. 08-59283
Jade Winds Association, Inc.,
Citibank, N.A., and Ramon Escobar,
An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Philip Cook, Senior Judge.
Toyne & Mayo, and Ross B. Toyne and Michael Schimmel, for appellant.
Gladstone Law Group, P.A., and Andrea Shelowitz (Boca Raton), for
appellee Citibank, N.A.
Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
In October 2008, Citibank filed an action to foreclose its first mortgage on a condominium unit owned by Ramon Escobar, naming Escobar and Jade Winds as defendants. Shortly thereafter, Jade Winds filed a cross-claim against Escobar, seeking past due association fees, costs, and attorney’s fees. In April 2009, a default final judgment was entered in favor of Jade Winds, and in August 2009, Jade Winds took title to the property via a Certificate of Title.
In an attempt to move the case forward, on February 23, 2010, Jade Winds filed a Waiver of Public Sale and Motion for Entry of Summary Judgment in Favor of Plaintiff Citibank. On August 19, 2010, a final judgment of foreclosure was entered in favor of Citibank, setting the foreclosure sale for October 8, 2010. On the morning of the scheduled foreclosure sale, Citibank appeared before the presiding judge of the Foreclosure Master Calendar with an Emergency Motion to Cancel and Reschedule Foreclosure Sale (“Motion to Cancel”), asserting:
“Plaintiff has instructed its counsel to cancel this sale in order to determine whether the Defendant qualifies for a loan modification.” (Emphasis added).
Obviously, this assertion by Citibank’s counsel was misleading as Jade Winds, not Escobar, held title to the property as of August 2009, and therefore, Citibank would not be attempting to determine if Escobar would qualify for a loan modification. Unfortunately, the irregularities did not end there. The certificate of service in the Motion to Cancel indicates that the motion was mailed to several parties on October 1, 2010, but inexplicably was not mailed to Jade Winds’ counsel of record, who had actively participated in this litigation. As Citibank failed to serve Jade Winds’ counsel and made no attempt to contact counsel to
inform him of the Motion to Cancel, it was heard on an ex parte basis. The presiding judge of the Foreclosure Master Calendar entered an order canceling the foreclosure sale and resetting it for January 4, 2011 (“Order Canceling Sale”). Jade Winds then filed a Motion for Sanctions against Citibank based onCitibank’s handling of the Motion to Cancel. On December 9, 2010, the Motion for Sanctions was heard before Division Judge Lester Langer, a circuit court judge in the division in which the foreclosure action was assigned. On that same day, Judge Langer entered an order imposing monetary sanctions against Citibank, finding that Citibank’s “conduct was in direct violation of [Jade Winds’] due process rights”; the Order Canceling Sale was “void for lack of notice”; and the Motion to Cancel contained “substantive misrepresentations or omissions which prevented the Court from making a proper determination on the merits.” More importantly, the order provides: “The Court further orders that the sale scheduled for January 4, 2011, SHALL NOT be cancelled.”
Less than one month after Judge Langer issued the order imposing sanctions, on December 30, 2010, Citibank prepared a Motion to Cancel the January 4, 2011, foreclosure sale (“Second Motion to Cancel”), requesting that the foreclosure sale be postponed until after February 1, 2011, to enable it to complete its review of “foreclosure documentation.” The Second Motion to Cancel,however, omitted the facts that the foreclosure sale had been previously reset, and that Judge Langer, just a few weeks earlier, had entered an order stating that the foreclosure “sale scheduled for January 4, 2011, SHALL NOT be cancelled.” Further, as with its previous Motion to Cancel, Citibank failed to mail a copy of the Second Motion to Cancel to Jade Winds’ counsel or make any other attempt to notify counsel.
On January 4, 2011, Citibank appeared before Senior Judge Philip Cook, who was the presiding judge at the Foreclosure Master Calendar. On an ex parte basis, Senior Judge Cook considered the Second Motion to Cancel, and he entered an order granting Citibank’s motion to cancel the foreclosure sale due to “affidavit review.”
Full opinion below…