Wednesday, June 29, 2011

JP Morgan Chase Bank, N.A. v. Hernandez

No. 3D10-1099, June 22, 2011, 3d District Court of Appeal from Miami-Dade Circuit Court
Bank appealed Miami-Dade trial judge’s order setting aside sale, judgment and lis pendens, dismissing complaint with prejudice

Wife signed note, both signed mortgage in 2005

April, 2008-foreclosure complaint with lost note count filed

May, 2008-wife, by attorney, filed demand for validation of debt but did not answer complaint or file affirmative defenses

May, 2009-summary judgment in favor of bank entered, sale scheduled for October, 2009

September, 2009-borrowers recorded new, unilateral promissory note naming lender as borrower
Sale continued to February 23, 2010 at lender’s request

February 10, 2010-borrowers filed Notice of Intent to File Discharge dated September 9, 2009 which stated it was filed with the recording of the unilateral note

Notice of Intent dated 9/9/2009, filed in court file 2/19/2010, but notarized on 2/22/2010
Notice of Discharge also filed with Notice of Intent on February 19, 2010, but notarized February 22, 2010

Ex parte hearing on 2/23/2011 resulted in sale continued to May 24, 2010, with hearing scheduled on April 14, 2010

April 14th hearing never noticed, no motions pending until April 13, 2010
April 13, 2010: verified motion to vacate judgment, cancel sale, discharge lis pendens and dismiss case with prejudice filed, without certificate of service, and heard on April 14, 2010, without lender present

Defense attorney “…managed to convince the trial court that a mere letter of ‘tender’ and a fabricated Unilateral Note, without payment of any kind, were sufficient to discharge the entire debt owed to (lender).”
Appellate court reversed: note and mortgage merged into judgment and therefore unilateral note after judgment nullity

Unilateral Note nonsensical, no evidence, self-serving

Court granted lender’s motion for fees, sanctions under §57.105 for action without factual or legal merit, reported to Florida Bar