On March 9, 2011, the Second District Court of Appeals rendered its decision in Sandoro v HSBC Bank in favor of the Homeowner.
Their decision is not the end of the case; they sent it back to the Trial Court for further proceedings in accordance with their decision. The Trial Court originally granted Summary Judgment in favor the Bank, meaning that there were no facts in dispute, and that the Bank was entitled to foreclose as a matter of law.
The Second DCA had two problems with the Trial Court’s decision. First was the issue of a Notice of Acceleration. The Homeowner’s Mortgage required the Bank (or the Servicer) to provide a Notice that the Homeowner is in Default of the terms of his Mortgage, and that it specifically state:
- what the default is,
- the action that is required to cure the default
- a date, not less than 30 days from the date the notice is given to the borrower, which has to be at least 30 prior to the “cure date”
- And that Failure to Cure may result in the acceleration of the Note and a Foreclosure may be commenced, and the property sold.
All well and good, as long as you can read a letter and a calendar. In this case, the Bank’s Attorneys initially forgot (or just neglected) to mention that the Notice was sent. Then they claimed it was sent on November 17, 2006, but didn’t provide any proof that it was mailed. Then, Wells Fargo said that the acceleration was mailed on “September November 11, 2006”. Is there really such a date? Then they provided a copy of this notice, but it was dated February 5, 2007.
So let’s just assume that this Mortgage Servicer and the Law Firm glanced at a calendar and the letter side by side, and what, just made up the date of November 17, 2006? I mean which is it, September, or November 2006 or February 5, 2007?
They are trying to take away someone’s home here. This is important stuff; you just don’t make it up as you go along.
The second problem the Second DCA had with the Trial Court’s decision was with the Assignment of Mortgage. In this case, the Foreclosure was originally filed by Wells Fargo, and in the middle of the suit Wells Fargo asked the Trial Court to substitute HSBC Bank as the Plaintiff mortgage holder. HSBC said that they were the proper party to bring suit based upon an Assignment of Mortgage which “reflected that the mortgage was transferred to HSBC Bank “on or before” April 3, 2007. Here’s the problem. That Assignment is dated October 9, 2008, and was notarized on October 10, 2008.
Last time I looked, April 3, 2007 came way before October 9, 2008.
So here we have bankers, and Mortgage Servicers, and attorneys who just can’t seem to get their dates right. Why didn’t they just read the Notice of Acceleration, and allege in the lawsuit that it was sent on February 5, 2007, the day it was dated? Why didn’t they date the Assignment of Mortgage to be effective on October 9, 2007, when it was dated? Now there may be answers to these questions that lie in the original filings with the Trial and Appellate Courts which I have not been privy to. But let’s get real here folks. Grab a calendar and read a letter. It’s not that hard, unless there’s something else going on. More to come, for sure.