The Florida Supreme Court has been asked by the Fourth District Court of Appeal to review its opinion and give its own determination on what’s the right thing to do in the case of Roman Pino’s foreclosure of his home in Greenacres. Seems that the appellate court took the unusual step to send the matter directly to the highest court in the state, effectively asking the Supreme Court to grade its paper, because the Pino matter has immediate, state-wide importance.
It’s a big deal when an appellate court does this, preempting the need for the party who lost on appeal to file a request for high court review, and given the facts of the case, it’s easy to understand why the 4th Court took this unusual step.
What Happened to Roman Pino? The Bank Got Two Bites at the Apple
Roman Pino is facing his second foreclosure lawsuit today, after the first foreclosure lawsuit was dismissed voluntarily by the bank. Seems Mr. Pino’s lender just refiled its foreclosure action against Mr. Pino after there were problems, big problems, with its first filing. Problems that may well exist in thousands of other foreclosures filed in courtrooms across the state of Florida, as well as across the country.
It all began back in July 2006, when Roman Pino paid around $200,000 for a home over in Greenacres with a $162,400 mortgage on it. Pino hit hard times and couldn’t make his mortgage payments so his lender, Bank of New York Mellon, instituted foreclosure proceedings in October 2008.
In its first pleadings, Bank of New York Mellon claimed to own the note via an assignment. Pino defended against the foreclosure, claiming that Bank of New York Mellon had to have that assignment to properly foreclose upon his home.
Then comes the juicy part: bank counsel, the notorious Law Offices of David J. Stern, countered by filing an amended pleading where they included an attachment to counter Pino’s argument. However, this assignment was curiously dated just one day before that first pleading was filed – one day, mind you – and it was not on file in the real property records. Pino smelled a rat, and cried foreclosure fraud. Depositions were scheduled, to get testimony from bank officials about the details of this curious assignment. Suddenly, that lawsuit was dropped under Florida civil procedure rules for “voluntary dismissals,” and a new foreclosure process was begun.
What The Courts Have Ruled So Far? Not for Roman Pino.
Pino challenged all this refiling stuff, claiming fraud. However, the Florida trial court ruled that the procedural rule had been met, so the voluntary dismissal would be respected. The 4th Court has agreed, with one justice dissenting, and now the ultimate decision will come from the Florida Supreme Court.
From the 4th District’s majority opinion:
The defendant in a mortgage foreclosure action filed by BNY Mellon appeals a trial court’s denial of his motion under Florida Rule of Civil Procedure 1.540(b) to vacate a voluntary dismissal. The notice was filed after the defendant moved for sanctions against the plaintiff for filing what he alleged was a fraudulent assignment of mortgage. Because the notice of voluntary dismissal was filed prior to the plaintiff obtaining any affirmative relief from the court, we affirm the trial court’s order. …
From the dissent, filed by Justice Polen who adopts the dissenting opinion written by retiring Justice Farmer, in its entirety:
… It is apparent to me that BNY Mellon actually did achieve some benefit by its dismissal. In voluntarily dismissing the case at that point, it thereby avoided the scheduled depositions of the persons who might have direct knowledge of an attempted fraud on the court. In fact, it is fair to conclude that the only purpose in dismissing was to shelter its agents from having to testify about the questionable documents. It continued to use the voluntary dismissal to stop the trial court from inquiring into the matter, arguing the absence of jurisdiction to do so.
