PLG litigation attorney Will Noriega, Esq. secures a per curiam affirmance (PCA) win in favor of foreclosing lender in Florida. See below for details on this recent PCA obtained on an appeal handled by Padgett Law Group. Though this result does not create any binding case law, it should serve as a basis of confidence when confronting the following issues within the trial court:

1. At trial, does Plaintiff have to prove that it has lien priority over ALL named interests as part of its prima facie foreclosure case and not just priority over those contesting; 
   1. No. The elements of a prima facie foreclosure that Plaintiff must prove are: (1) an agreement between the parties, (2) a default by the defendant, (3) acceleration of the debt to maturity, and (4) the amount due. In other words, the plaintiff must introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the outstanding debt. Only where there is an instance of a named interest contesting lien priority does Florida law hold that lien priority becomes part of plaintiff’s prima facie showing of entitlement to foreclosure.   
2. Whether failure to include an unnamed beneficiary of a trust when the subject deed transfers to only a trustee must result in dismissal for failing to name an indispensable party;
   1. No. Dismissal is not warranted for failing to include an unnamed beneficiary to a trust when the deed refers to the grantee as a “trustee” or “as trustee.” This type of deed is deemed to have transferred a fee simple estate to the grantee. See Heiskell v. Morris, 182 So.3d 714, 720 (Fla. 1st DCA 2015); Fla. Stat. 689.07(1).
3. Whether there is a presumption that the plaintiff has standing as holder of a negotiable instrument when a copy of the original note, attached to the complaint, differs from the original in that loan numbers have been redacted and “exhibit” stamps annexed.
   1. Yes, this presumption still exists despite nominal differences such as redactions to loan numbers (as required by Florida Rule of Judicial Administration 2.425(a)(4)(I)) and inclusion of “exhibit” stamps for identification purposes when attaching a copy of the note to the operative complaint. The Florida case law holding that the presumption does not exist occurs when there are substantial differences in the copy of the note attached to the complaint and the original later filed with the court, such as an indorsement that is not present on the copy.
   
   

Again, this PCA does not have any precedential value and cannot later be cited to for these propositions. However, it does indicate that Florida’s Second District Court of Appeal does not believe that the above scenarios should prevent the entry of a final judgment of foreclosure.

​Today, the Florida Supreme Court in Glass v. Nationstar, LLC, Case No. SC17-1387, recalled its mandate, and withdrew its opinion dated January 4, 2019.  
 
Accordingly,  the Fourth District Court of Appeal, Nationstar v. Glass, Case No. 4D15-4561,  opinion remains in effect, where the Fourth District Court of Appeal held that when a foreclosure case is dismissed for lack of standing, the borrower may not take advantage of the attorney fee provision of the mortgage to seek fees.

Questions?
Contact Marissa Yaker, Esq. here.

Seth J. Greenhill, Esq., a bankruptcy attorney in Padgett Law Group's Fort Lauderdale, FL office authored a feature article in industry publication DS News' April issue. The issue is currently on newsstands. In his article, Greenhill discusses a court of appeals ruling that could have implications for creditors in Chapter 13 bankruptcy cases. The issue at hand is defining the term "provided for." Click here to read Greenhill's article or contact Seth directly. 

MONDAY, APRIL 1, 2019 | ATLANTA, GA  Today Padgett Law Group (PLG) is pleased to announce that Marissa M. Yaker, Esq. has been promoted to Managing Attorney over the firm’s multi-state foreclosure practice. The
promotion is effective April 1, 2019 and will include the firm’s foreclosure practices in Florida, Georgia, Tennessee, Arkansas, and Texas. In her new role, Marissa will specifically focus on FHA timelines, general processing timelines, and client education related to foreclosure changes, updates, and news across PLG’s multi-state footprint.

“Timeline, turn around, and quality are hallmarks of the PLG experience and each of these are areas where Marissa excels. We are thrilled to have her in this expanded role where she’ll be able to share her talents for thoroughness, quality legal work, and efficient operational excellence with more of our clients and other PLG team members,” said Robyn Padgett, PLG’s Chief Development Officer.

Marissa’s legal practice is primarily focused on creditor’s rights and foreclosure. In previous management roles,
Marissa has managed first legal in a mulit-state footprint as well as foreclosure and title curative practices in
Florida. Marissa is licensed in Florida, where she is based out of the firm’s Fort Lauderdale, FL office. Marissa is regularly featured in industry publications such as DS News and has represented the firm on industry panels and in national advocacy efforts such as the Legal League 100’s recent United States Supreme Court amicus brief in
Obduskey v. McCarthy Holthus, LLP. Marissa can be reached by email at Marissa.Yaker@PadgettLawGroup.com or (850) 422-2520 ext. 7059.

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About Padgett Law Group
Padgett Law Group (PLG) is an elite, full-service creditors rights’ law firm with practices in Florida, Georgia,
Tennessee, Arkansas, and Texas. PLG offers exclusive representation to institutional clients such as lenders,
mortgage servicers, credit unions, banks, hedge funds, investors, and other financial services industry stakeholders. Leveraging technology in its partnerships with forward-thinking clients gives PLG  the ability to focus on the aggressive management and processing of delinquent or under-performing loans, providing clients with an edge when curing or resolving complex legal matters.