November 2015

Insufficient Evidence to Support Reestablishment of Lost Note

Jason P. Seidler v. Wells Fargo Bank, N.A., Case No. 1D14-2569 (1st DCA 2015)

In mid November, 2015, The First District Court of Appeals reversed a final judgment of foreclosure. The Court found that the record did not contain sufficient evidence to support reestablishment of the lost page of a promissory note.

Because Wells Fargo failed to prove its claim to reestablish a lost note and failed to prove its standing, based on the original plaintiff’s standing to foreclose on the mortgage securing the note on the date the complaint was filed, the final judgment of foreclosure was reversed in favor of the homeowners.

Mortgage Lien Not Extinguished By Quiet Title Action

Recently in Countrywide Home Loans, Inc., v. Wayne R. Burnette, Case No. 1D14-728, The First District Court of Appeals considered whether a mortgage lien had been extinguished five years after the acceleration of the debt.

The Court reasoned that even if the statute of limitations had run on an action to enforce a promissory note and foreclose on a mortgage, the lien against the property remained valid until five years after the maturity date of the debt secured by the mortgage. The face of the promissory note reflected a maturity date of November 1, 2035. The mortgage lien therefore terminated on November 1, 2040.

Borrower's late acceptance of modfication is counteroffer

Recently, in William Von Kuehlman v. Bank of America, N.A., Case No. 5D14-2131, The Fifth District Court of Appeals analyzed some interesting facts. The Lender had offered the Borrower a loan modification and the terms of the offer required him to accept it by a certain day. The Borrower signed the agreement but returned it late along with the first modified payment. The Borrower made six more payments in the modified amount, all of which were late, but which the Lender accepted and deposited.

The Lender argued that no modification had occurred because of the Borrower's late acceptance. However, the Court found that the Borrower's late acceptance of the modification operated as a counteroffer. The Court concluded that the Lender had accepted the counteroffer by its months of silence and its acceptance of nine monthly payments as specified in the modification agreement.