Re Lee County, FL Courts and Basic Due Process
I’ve written about abuse of due process homeowners face in the Lee County, Florida courts for both DailyFinance and Fortune, so I’m happy to write about an appellate court smackdown of a Lee County judge. In Laurencio v. Deutsche Bank, the court found Lee County Judge Starnes had committed three basic errors. One, Starnes had granted the bank summary judgment when an issue of material fact existed—whether or not the bank had complied with the mortgage’s notice requirements–and two, he had abused his discretion by denying the defendant the right to amend his pleadings. The court also notes that a Charlotte County judge had also improperly ignored the bank’s failure to give the notice required by the mortgage in a case it reversed last month, Konsulian v. Busey Bank. It’s great to see the Fl appellate courts standing up for the rules. Hat Tip: April Charney
Re Admissibility of Servicer Affidavits
Max Gardner sent me this recent decision by the Maine Supreme Court (Beneficial Maine v. Carter) in which the Court rejected using a business records affidavit by a servicer employee as proof of who owned the note and mortgage, without any evidence of the servicer’s employee’s knowledge of the business practices of the note owner.
Re New Century
And for an older decision on a still hot issue: David Baker sent me this 2010 decision New Century et al. v. Braxton in which the Massachusetts land court denied the creditors’ request to reform the Braxton mortgage because they had failed to prove standing.
The Braxtons took out two loans from New Century in June 2006. In April 2007, New Century went bankrupt. In May 2007, a loan purchase agreement, Morgan Stanley seller, listed the loans as part of a deal. Some of the creditors bought the loans in that deal. But creditors were unable to show how Morgan Stanley got the loans from New Century, or more important, because of the New Century bankruptcy, when. The creditors also submitted assignments supposedly executed in 2009 by New Century, but when asked by the court to explain if the New Century liquidation trust had given permission for the assignments or how under bankruptcy law it would be ok not to get the permission, the creditors didn’t answer.
For related information, see my earlier New Century post.