Next Thursday, the Florida Supreme Court will hear oral arguments in a big Florida foreclosure defense case – so big, in fact, that lots of banks are complaining to the news media that there will be a huge state-wide financial crisis if the Florida Supreme Court sides with the Average homeowner who’s fighting this legal battle.
What’s happening? Mr. Roman Pino, a drywall hanger, is suing the Bank of New York – he’s already gone through a Florida trial court and the 4th District Court of Appeals.
Mr. Pino also settled his case – but last December, the Florida Supreme Court announced that it would be considering the legal question involved in his foreclosure case, and next week the attorneys for both sides will stand before the Justices and make their presentations and take questions from the bench starting at 9:00 AM on Thursday, May 10, 2012. (After that, the Court will issue an opinion but that will be months from now.)
You can read the Florida Supreme Court’s opinion where it explained how and why it was keeping the case even though the parties had settled the underlying dispute here. From that opinion, the High Court provides:
At issue in this case is whether the plaintiff in a mortgage foreclosure action (here, BNY Mellon) may be subject to sanctions for filing what is alleged to be a fraudulent assignment of mortgage where the plaintiff filed a notice of voluntary dismissal before the trial court had the opportunity to rule on the motion for sanctions. As reflected above, the Fourth District certified this issue to be one of great public importance, and in doing so, noted that “many, many mortgage foreclosures appear tainted with suspect documents” and that Pino’s requested remedy, if imposed, “may dramatically affect the mortgage foreclosure crisis in this State.” Pino, 57 So. 3d at 954-55. The issue also has broader implications and presents questions outside of the mortgage-foreclosure context. Moreover, Pino, the petitioner to the instant review proceeding, has already filed his initial brief on the merits in this Court.
What is this big legal question that the Florida Supreme Court wants to consider and decide? It’ is something key to justice in all this Foreclosure Fraud.
Here is the big question: can a bank in Florida file a lawsuit with fraudulent documents down at a Florida courthouse and then go back and file a voluntary dismissal of that lawsuit and by proactively dismissing its own case, dodge the bullet of getting sanctioned for filing fraudulent documents in the first place?
For lawyers, it’s more than this: from a legal perspective, the question is whether or not a Florida trial court has the jurisdictional power to overturn a voluntary dismissal filed by the bank when a motion to overturn is presented to the trial court that includes an allegation that the dismissed case involved fraudulent filings and therefore, was a fraud on the court.
Can the Florida trial court dismiss the dismissal to stop a party from procedurally evading punishment for a fraud on the court? We’ll know soon enough.
Larry Tolchinsky’s Tip:
It’s true that Mr. Pino and the Bank settled his case – but he had them boxed in a corner. After he was sued for mortgage foreclosure by BNY Mellon, he moved for the big bank to be sanctioned (which can mean not only throwing the case out, but forcing the party to pay money) because Mr. Pino asserted that the filed paperwork supporting the foreclosure lawsuit contained a fraudulent assignment of the mortgage.
Robosigning, apparently. And we all know that there’s lots and lots and lots of robosigned documents being filed in Florida courts all over this state. What was the bad paper in Mr. Pino’s case? From the 4th court of appeals opinion:
BNY Mellon commenced an action to foreclose a mortgage against the defendant. The mortgage attached to the complaint specified another entity, Silver State Financial Systems, as lender and still another, Mortgage Electronic Registration Systems, as mortgagee. The complaint alleged that BNY Mellon owned and held the note and mortgage by assignment, but failed to attach a copy of any document of assignment. At the same time, it alleged the original promissory note itself had been “lost, destroyed or stolen.” The complaint was silent as to whether the note had ever been negotiated and transferred to BNY Mellon in the manner provided by law.
So, now there’s a sanctions motion setting on the court’s calendar. Big bank responds by settling fast with Mr. Pino and filing a voluntary dismissal of the foreclosure lawsuit. That’s pretty much standard procedure: you dismiss the lawsuit on the record after you settle the case.
However, Mr. Pino wasn’t done. He filed a motion pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure, asking the trial court to vacate that voluntary dismissal and he also filed a motion for sanctions against the Big Bank for filing that fraudulent assignment in the first place.
Here’s an important point: the sanctions motion was filed before the notice to voluntary dismiss the case. So, the bank knew that Mr. Pino was asking the court to sanction the bank before the bank dismissed its foreclosure action. That’s a big deal.
Another big deal: MERS is involved. As we discussed earlier, MERS (Mortgage Electronic Registration System) is being investigated by various states (e.g., the Massachusetts Attorney General) as well as journalists for its contribution to the Foreclosure Fraud crisis. From our earlier post:
MERS … was set up by banks to streamline their ability to foreclose on homes throughout Florida and elsewhere. Problem was, MERS apparently didn’t bother to follow the public record standards established under the state law. They didn’t file their documents in the land records, among other things.
And the wrong was pretty blatant. After Mr. Pino first argued that there was no assignment of the mortgage in the bank’s foreclosure suit, BNY Mellon amended its pleadings and included an assignment that was dated just before the foreclosure lawsuit had been filed in the first place and without any evidence that the assignment had ever been recorded in the public records.
It was then that Mr. Pino moved for the court to sanction the Big Bank, arguing that this smelled to high heaven (legal jargon, it was false) and (get this) in support of his request, Mr. Pino pointed out that the person shown on this newly filed, non-recorded assignment as signing it (executing it) was and employee of the mortgagee’s lawyer — and that if you looked closely, you would find that the date on the notary stamp showing the commission date revealed that the assignment never could have been legitimately notarized on the date that is shown on the assignment.
Then, to add even more pressure, Mr. Pino set some depositions (where sworn testimony is taken in front of a court reporter) – he would be deposing not only the notary and the lawyer’s employee who signed the document, but also the people named as witnesses on the assignment.
No wonder the bank scurried down to dismiss that lawsuit and settled that foreclosure case with Mr. Pino. Right?
So now, we’re all watching to see what the Florida Supreme Court is going to do about this mess. The record is giving the High Court a prime example of what Florida foreclosure defense attorneys see all the time – big banks doing bad things. Very bad, obviously bad, fraudulent things.
What happens to the evildoers? We’ll know soon enough. But one thing we know right now — just like we’ve been saying, that big settlement with all the Attorneys General which has had so much media coverage doesn’t mean much to the Average Joe. It’s individual fights like this one, hard fought by Mr. Pino, that will bring justice to the Florida homeowner victimized by Foreclosure Fraud.
If you have questions or comments, please feel free to Chat with Larry in the comments below, at email@example.com or (954) 458-8655.