Vidal -v- Liquidation Prop., No. 4D10-3358, slip op., (Fla. 4th DCA, October 31, 2012)
Following entry of summary judgment of foreclosure for the lender, the Vidals appealed arguing that affirmative defenses precluded such judgment. Among the defenses were lack of standing, Truth In Lending Act (TILA) violations, and two types of fraud. Having untangled the facts, the appellate court agreed with the Vidals that for the lender to have standing, the lender had to prove ownership and possession of the note on the date suit was filed. An assignment of mortgage was produced, but it transferred only the mortgage not the note, and as all should know “the mortgage follows the note.” An allonge to the note was produced but it was not dated. An affidavit by the lender attesting that it received transfer of the note prior to filing would have evidenced standing.
The appellate court also combed through Vidals argument as to the TILA defense and agreed with them. While the remedy of rescission has a three year statute of limitations, there is only a one year period for the remedy of recoupment unless brought by way of defense, as it was.
The defense of fraud allegedly arising from the lender’s knowledge that income was overstated was cut because one suffering from fraud cannot recover when they knew the statement to be false.
On the second fraud defense, wherein it was alleged that the lender had orally represented that the loan was a fixed rate when in fact it was adjustable, the appellate court found that such contention was expressly washed out by the written contract.
Author - Rex Russo
Over 35 years experience with Appeals, Real Estate Litigation, and Bankruptcy Actions and Adversary Defense.