Friday, January 7, 2011

District Court Upholds Bad Faith Dismissal with attorney fees

several years ago, the Firm was among the first in the country to start looking into the "Robo-signers" and, even worse, the mortgage foreclosures that were filed in Bad Faith because the plaintiff was attempting to foreclose a mortgage that it did not have an assignment of the original documents.

We now have over 300 of these actions pending, and recently the Second District Court of Appeal ruled in favor of our right to be awarded attorney fees when a mortgage foreclosure action is dismissed because the plaintiff never had the right to sue in the first place.

The Appellate Court ruled that when a lawyer starts the foreclosure, the client must possess the right to enforce the mortgage against both the borrower and the Association. The Court made it clear that the Association was correct in resisting the foreclosure, and the trial court dismissed the lawsuit (which allowed the Association to move ahead with its own collection action against the delinquent owner and indirectly benefited the delinquent owner by having the mortgage foreclosure dismissed). However, the trial court denied attorney fees for this effort.

The Appellate Court strongly disagreed with the trial court and stated:

"Here, as in Barthlow, J.P. Morgan's mortgage foreclosure action was
unsupported by the material facts necessary to establish the claim because J.P. Morgan
lacked standing when the action was filed.  For the purpose of awarding fees under
section 57.105(1), it does not matter that J.P. Morgan may be able to prevail in a new
action to foreclose.  Thus the circuit court erred as a matter of law in concluding that 
J.P. Morgan's ability to file a new foreclosure action disentitled Country Place to an 
award of attorney's fees.  Accordingly, we reverse the circuit court's order to the extent
that it denies Country Place's motion for attorney's fees.  On remand, the circuit court
shall enter an order in accordance with section 57.105(1) awarding Country Place its
attorney's fees in the amount of $6945"

this is a significant ruling because I believe that we are the only firm who defends these bad faith mortgage foreclosures on a full contingency. The client is never exposed to attorney fees, and the dismissal of the mortgage foreclosure freeze up the Association to demand payment from the delinquent owners and in fact freeze up those owners from a foreclosure as a result of our actions, giving them more time, and perhaps freeing up more assets to be able to meet their obligations to the Association.  The cite of the case is as follows:

ACQUISITION CORP., Case No. 2D10-569

1 comment:

Anonymous said...

These giants in markets wont let us run away. They are demanding and never answer our phone calls. And now we are offered foreclosure freezes .