The Florida Supreme Court has ruled against Florida homeowners – and for the foreclosing banks – in Roman Pino v. the Bank of New York. The opinion came down on February 7, 2013, and you can read the entire thing online at Google Scholar.
Pino Caught the Bank Filing Fraudulent Assignment of Mortgage and Asked for Sanctions
It all began when Mr. Pino faced foreclosure of his Florida home and his foreclosure defense lawyer moved for the foreclosing bank (Bank of New York – Mellon) to be sanctioned because the bank had filed a fraudulent assignment of mortgage in the foreclosure action. Instead of facing the music at the hearing on the sanctions motion, the bank scurried over to the courthouse and filed a voluntary dismissal of the foreclosure case. Pino argued that this wasn’t right, to allow a bank to dismiss the case right before the trial court could rule on the sanctions request.
We’ve been monitoring this case for awhile now, and for the backstory and its full details you can read our prior posts. This is a big deal, and it’s a bad deal for Florida home owners.
Bank Settled With Mr. Pino But Florida Supreme Court Took Case as Issue of “Great Public Importance”
Mr. Pino settled his dispute with the bank, but the Florida Supreme Court went ahead and decided to rule on the appeal before Mr. Pino settled with the Bank of New York because of the wide-ranging impact their decision could make in future Florida foreclosure cases.
Why? The Fourth District Court of Appeals sent the case up to the Florida Supreme Court, the highest state court, urging the High Court to issue an opinion, even though the parties themselves had settled, because the issue was of “great public importance” since “…many, many mortgage foreclosures appear tainted with suspect documents” and Pino’s request that the bank be sanctioned “may dramatically affect the mortgage foreclosure crisis in this State.” Pino v. Bank of New York, 57 So. 3d 950, 954-55 (Fla. 4th DCA 2011).
Thing is, by siding with the bank in Pino, the Florida Supreme Court has done a big favor to banks and not so much for beleaguered home owners and distressed borrowers.
Florida Supreme Court Rules for Banks – Even If They’ve Filed Fraudulent Documents in Public Record
First, here is the actual explanation given by the Florida Supreme Court in its opinion:
Based on the above, we answer the certified question in the negative. We hold that when a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff’s voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from remedying the effects of the fraudulent conduct. Any affirmative relief the plaintiff obtained against the defendant as a result of the fraudulent conduct would clearly have an adverse impact on the defendant, thereby entitling the defendant to seek relief to set aside the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)(3).
In this case, because BNY Mellon did not obtain affirmative relief before taking the voluntary dismissal, the trial court did not have jurisdiction to reinstate the dismissed foreclosure action for the purpose of dismissing the action with prejudice. We also conclude that the trial court did not have the inherent authority to strike the notice of voluntary dismissal. Because Pino sought no other available sanctions, and the case has since been resolved between the parties, we need not reach the question of whether the trial court should be able to award monetary sanctions under the circumstances of this case. We therefore approve the result reached by the Fourth District affirming the trial court’s denial of Pino’s motion.
What’s this saying? Simply that a Florida trial judge does not have the legal power to stop a bank from pulling its lawsuit out of the fire if it does it fast enough. If a Florida bank gets caught doing something fraudulent in the paperwork it files to support its foreclosure action, it can skip away without getting sanctioned (punished). The reason is because under Florida law, a party can withdraw a lawsuit without getting slammed as long as it pulls the case before there has been any action by the court in its favor.
Larry Tolchinsky’s Tip: The Florida Supreme Court has requested that the Florida Bar try and change the Florida rules of procedure to create rules that would allow courts to impose sanctions on a party even after they have dismissed their lawsuit. Which means that there is some hope that in the future that the tool that the Florida Supreme Court found to be missing will be created – banks would be sanctioned even if they quickly “erase” a foreclosure action where they’ve been caught filing fake documents.
However, right now the law for the State of Florida stands as it has been explained in the Pino case. If a bank gets caught with fraudulent paperwork in its court case, then it can dismiss that case before the plaintiff home owner can have any sanctions request heard by a judge.
This is a field day for all those robo-signed files that are still setting in Florida court clerks’ offices around the state. This type of fraud may not have any consequence here – unless the court does something for the bank in the foreclosure action- if the bank gets caught then it can just dismiss the lawsuit and avoid getting monetary sanctions assessed against it, or a ruling that the foreclosure action is dismissed or barred.
Don’t count out Florida foreclosure defense attorneys from finding strategies to fight against Pino and make banks take responsibility for their robosigned documents — but make no mistake about it, Florida robosigning banks are really, really happy right now.
Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at email@example.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.
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My home was foreclose on Nov 2012 is there anything I can do with regard to wrongful foreclosure. I have evidence that the assignment was done by a now infamously known robo-signer. Is there anything a homeowner can do in this situation or am I just another “win” for the bank to get their property back via fraudulent means.