FORECLOSURE FRAUD HEADED TO FLORIDA SUPREME COURT

Posted by revolt | FORECLOSURE FRAUD HEADED TO FLORIDA SUPREME COURT | Wednesday 23 February 2011 5:25 pm

FORECLOSURE FRAUD HEADED TO FLORIDA SUPREME COURT

By Peter Franceschina, Sun Sentinel – 7:46 p.m. EST, February 2, 2011 

A South Florida homeowner who is fighting a mortgage foreclosure could end up reshaping state law.

An appeals court on Wednesday asked the Florida Supreme Court to consider Roman Pino’s case as a matter of “great public importance,” a move legal experts say could result in reforms in foreclosure cases where there is evidence of fraud in the way documents were handled by lenders, mortgage servicers and law firms.

The decision by the 4th District Court of Appeal in West Palm Beach to send the case to the state Supreme Court was unusual, because neither the homeowner nor the bank seeking to foreclose on Pino’s home had asked for such a review.

“We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents,” the appeals court wrote.

If the case is taken up by the Supreme Court and results in a decision in favor of the homeowner, legal experts who specialize in foreclosure law say the case has the potential to affect thousands of foreclosures across the state where there are allegations of document fraud.

“There is this huge problem that is evident across the state. The District Court of Appeal is handing this up to the Supreme Court because of the importance of this bigger problem,” said South Florida attorney Margery Golant, who works with The Florida Bar to educate attorneys about proper document handling in foreclosure cases.

Pino paid $203,000 for a Greenacres home in July 2006 and took out a $162,400 mortgage, land records show. He fell behind on his payments, and Bank of New York Mellon moved to foreclose in October 2008.

Pino hired Royal Palm Beach attorney Thomas Ice, whose law firm has been at the forefront of uncovering forged and fraudulent foreclosure documents.

The bank alleged in its foreclosure complaint that it was the owner of the mortgage note through an assignment from another lender, but didn’t include the assignment as part of the foreclosure complaint, according to the appellate decision. Ice’s attorneys moved to dismiss the complaint, arguing that the bank needed the assignment in order to foreclose.

Then the bank’s attorney, from the law offices of David J. Stern in Plantation, filed an amended complaint and attached an assignment that had not been recorded in land records and “which happened to be dated just before the original pleading was filed,” the appeals court wrote.

Ice wanted to try to prove Pino was the victim of fraud, but the judge would not allow him to go forward because the bank voluntarily dropped the foreclosure action. The appeals court agreed with the judge, but because of the importance of the issue, sent the case to the state’s highest court in Tallahassee. One appellate judge, Gary Farmer, disagreed, saying he thought the trial judge could have kept the case open so Ice could pursue his claim of fraud.

Ice said Wednesday that the bank dismissed the foreclosure just as his attorneys were set to take depositions of Stern employees to discover how the assignment was created. Stern’s firm is one of four foreclosure law firms in the state under investigation by the Florida Attorney General’s Office for document fabrication.

The case illustrates a problem that is playing out in cases around the state, where problematic documents are discovered, and the foreclosure is dismissed only to be later re-filed with different documents, Ice said.

That is what happened to Pino. The bank re-filed the foreclosure in August 2009, and that case is now going forward. “This seems to be a prevalent problem in foreclosures,” Ice said. “That is why [the appellate judges] want the Florida Supreme Court to rule on it. This is going to be significant to thousands of cases across the state.”

Three attorneys for the bank could not be reached for comment despite phone calls and e-mails seeking comment.

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