Banks Produce the Note

Ray Garcia

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Real Estate Attorney

Contributor Level 11

Posted about 2 years ago. 2 helpful votes

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In order to foreclose on a property, a bank must first obtain a Final Judgment of Foreclosure. There is a specific procedural process that must be followed before a court may enter a Final Judgment of Mortgage Foreclosure. Many banks, specifically in South Florida, have been circumventing these procedural safe guards in order to obtain these final judgments on an expedited basis. As a homeowner in South Florida, it is imperative that you hire a foreclosure defense attorney to protect these essential procedural practices.

Before a bank obtains the Final Judgment of Foreclosure, it must establish that it legally holds and owns the note and mortgage, and therefore, is entitled to enforce both. Ideally, both documents should be attached to the Foreclosure Complaint, but this is not always the case. Many times, the bank will allege that the note has been lost, and will include a count to establish the lost note. More often than not, the bank will find the note, and move the court for entry of a Final Judgment of Foreclosure.

Pursuant to Florida Rules of Civil Procedure, all evidence upon which the bank relies to establish ownership of the note and mortgage, must be served upon all parties twenty days prior to the hearing on the Final Judgment of Foreclosure. In South Florida, specifically Miami-Dade and Broward counties, these procedural safeguards are consistently violated by banks. However in,Verrizzio v. Bank of New York, the Second District Court of Appeals of Florida held that these sloppy and loose procedural practices are not to be tolerated. TheVerrizzioopinion explained that the promissory note constituted a portion of the evidence that the bank relied on in its Motion for Final Summary Judgment, and therefore the note must have been served upon all parties twenty days prior to the hearing on the motion. This procedural precaution is specifically important where the bank has filed a count to establish a lost note, and the note was not attached to the original complaint.

It has become practice for banks in South Florida to file the note and other evidence it relies upon in its Motion for Final Summary Judgment the day of the hearing. This procedure is in direct violation of Florida law and should preclude the entry of a Final Judgment. Unfortunately, if a South Florida homeowner, has not hired a foreclosure defense attorney, this procedural safeguard may be violated and may cause the loss of your property. Hiring a foreclosure defense attorney in Miami Dade and Broward County will ensure that all legal procedures are followed by your bank.

Additional Resources

www.raygarcialaw.com

http://raygarcialaw.com/blog/2010/07/home-affordable-unemployment-program/

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