“This was a foreclosure case that advanced to trial. The presiding judge thought the bank presented insufficient evidence at trial to prevail. But two appellate judges disagreed based on an Order substituting plaintiff that was entered ex parte, without notice, and without hearing. Hence, according to these two judges, evidence to justify foreclosure is never necessary – the plaintiff obtained the Order of substitution, and since the Order included gratuitious fact-findings (included by the plaintiff’s attorney), the plaintiff need not present evidence at trial.”


Ex Parte Motions to Substitute Party Plaintiff

I’m hot under the collar right now as I read a 2-1 decision from a three-judge panel from Florida’s Third District Court of Appeal. The decision stems from an involuntary dismissal entered in favor of a homeowner, at trial, because the plaintiff failed to prove the requisite elements of its case. In the words of the trial court judge, dismissal of the foreclosure case was required “as a result of Plaintiff’s failure to establish its status as the owner and holder of the applicable Note and Mortgage with standing to bring suit.”

In the appellate court, however, two judges decided the lower court erred by so ruling. The third judge on the three-judge panel vehemently disagreed, but his opinion was relegated to a dissent.

Oddly, the majority began its analysis of whether the plaintiff proved its case at trial by discussing an interlocutory Order which permitted the plaintiff to substitute as the plaintiff in the lawsuit. That Order provided:

The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, is the real party in interest and proper Plaintiff in this action, and;

The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, is hereby substituted for JPMorgan Chase Bank, formerly known as Chase Manhattan, as trustee, residential funding corporation, as attorney in fact, as the proper Plaintiff in this action and the style is amended as reflected on this Order.

In the view of the majority, “because there was no denial or defense raised in defendants’ pleadings concerning this finding, the judgment under review cannot be permitted to stand for that reason alone.”

This is an absolute bombshell, folks. It’s a major, major trap for unsuspecting homeowners (especially those proceeding without counsel), one that the Florida courts have, perhaps unwittingly, been routinely and systematically permitting for many years. Before I explain why that is, and what we must all do to avoid it, let’s start out by explaining why the majority’s opinion is, respectfully, terribly misguided.

Check out the rest of Mark’s analysis here…

Copy of the opinion below…




Bank of New York Trust v Rodgers

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