On February 7, 2018, Florida’s Third District Court of Appeal rejected multiple arguments routinely advanced by borrowers’ counsel in defense and delay of foreclosure litigation, reversed the trial court’s order dismissing the case, and remanded with instructions to enter a judgment of foreclosure. HSBC Bank USA, N.A. v. Joseph T. Buset, et al. Case No. 3D16-1382. The opinion offers lenders and servicers who litigate foreclosures in Florida a strong new weapon to overcome common delay and obstruction tactics.
The court in Buset rejected a number of challenges to the plaintiff’s standing to maintain a foreclosure. The court reaffirmed that typical promissory notes are negotiable under the Florida analog of the Uniform Commercial Code, rejecting the argument that the note’s reference to the mortgage, and the note’s definition of “Note Holder” destroyed negotiability. Buset, slip op., pp. 7–9. The court also held that the plaintiff had standing to foreclose by virtue of holding a copy of the note endorsed in blank, and that the plaintiff need not show ownership of the loan through a chain of endorsements. Id., pp. 9–13. The court rejected the borrowers’ claim that the plaintiff lacked standing because of alleged violations of the Pooling and Servicing Agreement, affirming that borrowers lack standing to assert such violations. Id., pp. 13–14. And the court rejected attacks on the form of a mortgage assignment, both because the assignment was in a proper form and because the formal mortgage assignment was superfluous; the mortgage followed the note and the note holder thus automatically had standing to enforce the mortgage. Id., pp. 14–15.The court in Buset also made two significant evidentiary rulings. First, Buset held the trial court erred by admitting the testimony of a so-called “expert” on loan securitization and negotiability, and ruled that such witnesses are precluded from testifying as to legal conclusions. The use of these “experts” has oftentimes been employed by foreclosure defendants to oppose or otherwise stall the prosecution of foreclosures throughout Florida.
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