Fourth DCA Holds that for Ortiz Presumption to Apply the Note must be in the “Same Condition” Yesterday, in Fredle v. The Bank of New York Mellon, 4D15-3283, the Fourth District Court of Appeal granted a motion for rehearing and clarification with some interesting tidbits important to fighting the presumption analysis pursuant to Ortiz. Here, the…

Fourth DCA Holds Plaintiff Must Possess the Original Allonge Earlier this month in U.S. Bank N.A., etc. v. Jean Kachick, 4D16-1776, the Fourth District Court of Appeal affirmed the trial court’s final judgment in favor of the homeowner because the Plaintiff failed to file the original allonge with the trial court.  Although the original note was…

Fourth DCA Finds an Agency Relationship Between Servicer and Noteholder without PSA or MLS On Wednesday the Fourth District Court of Appeal reversed an order of involuntary dismissal finding that the Bank of New York Mellon had standing to initiate the foreclosure action even when a different party, the mortgage servicer, was in possession of the note…

Fourth DCA Holds that Where Case is Dismissed Due to Standing, No Contractual Attorneys’ Fees In a devastating decision today out of Fourth District Court of Appeal, the Fourth agreed with the Third DCA’s Bank of New York Mellon et al. v. Fitzgerald decision and held that where a case is dismissed for failure to prove standing, the homeowner is…

Fourth DCA: Note in Servicer’s Possession is Not Contrary Evidence In a decision today out of the the Fourth District Court of Appeal, Deutsche Bank National Trust Co. v. Applewhite, the appellate court held that even where there is evidence that another party was in possession of the note when the foreclosing party filed suit, that will…

Third DCA Holds No Standing Means No Attorneys Fees In a very important decision out of the Third District Court of Appeal today, in Bank of New York Mellon et al. v. Fitzgerald, the 3DCA held that where a defendant-homeowner raises and proves that the plaintiff-bank lacked standing to foreclose on a note at the…

Recent South Florida Foreclosure Opinion May Take Away Another Avenue to Disprove Holder Status Our South Florida Foreclosure Lawyers have another recent case law update stemming from an appeal from a Broward County foreclosure court.  The Fourth District Court of Appeal recently ruled that anomalous indorsements appearing on a note will not affect the holder status…

Florida Supreme Court Decision Means New Filings, New Defenses Months ago the Florida Supreme Court issued a seminal opinion that decided whether or not banks could re-foreclose on a mortgage after they had accelerated the amount owed and had the case dismissed. In Bartam v. U.S. Bank, the Florida Supreme Court said that yes, the…