Florida court: Robo-signing not sufficient to stop foreclosure
A Florida appeals court this week affirmed a bank’s right to foreclose even if alleged robo-signing occurred. The ruling is good news for mortgage servicers — setting out that lack of knowledge of information in foreclosure documents isn’t sufficient reason to set aside the foreclosure. However, a trial court’s broad discretion in vacating judgments doesn’t mean that other trial judges will see these cases the same way. In Freemon v. Deutsche Bank, Florida's Fourth District Court of Appeal ruled that an allegedly faulty affidavit didn’t constitute fraud in the case. “Freemon’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside a default judgment,” the court ruled this week. “Freemon nowhere contends that she did not default on her mortgage, nor does she allege that the amounts due and owing, set forth in the affidavit and incorporated in the final judgment, are incorrect.” In November 2007, Deutsche Bank filed to foreclosure against the homeowner, Veldrin Freemon, alleging she owed more than $570,000 on the mortgage note. Freemon didn’t answer the foreclosure complaint and a default judgment was entered. She later contested the case and it was delayed for six months. A foreclosure sale was reset for September 2009, and the property was sold back to the bank. When the bank sought to repossess the home after the sale, however, Freemon filed for relief from the judgment, alleging that an affidavit in the case was fraudulent. The allegation of fraud was based on a deposition in another foreclosure case from a Litton Loan employee who was signing foreclosure affidavits without personal knowledge of their contents. The court ruled that the deposition was insufficient to prove fraud and disagreed with Freemon’s characterization of the Litton Loan affidavit from Denise Bailey. Freemon claimed that Bailey claimed personal knowledge of the matters in the affidavit yet she did not know who inputted information into the computer regarding the loan in question. “Mere lack of personal knowledge regarding the facts and figures in an affidavit will not justify vacating a judgment that has already been entered,” said the Ben-Ezra & Katz law firm, in an analysis of the court’s ruling. Bailey attested that she had personal knowledge of the amounts and charges due, the court said in its opinion. “In her deposition in another case, she testified that she was the records custodian for Litton Loan," the court said in the ruling. "In signing the affidavits of indebtedness, she acquires her knowledge of the amounts due by inputting the mortgagor’s name into the computer, which contains all of the mortgage information." "Bailey’s affidavit in this case is not inconsistent with her testimony in the other case. Freemon has not shown any fraud, nor has she shown that the information about this loan, i.e., the amounts due and the default, are in any way incorrect.” In its analysis of the ruling, Ben-Ezra & Katz said the appeals court also pointed to the trial court's broad discretion in such cases. “That means that whether a trial court decides to vacate or not vacate a judgment, its decision will stand on appeal unless the trial court abused its discretion,” the law firm wrote. “This opinion is not an instruction to trial court judges that they should deny similar motions to vacate in all cases. Rather, it is a green light for them to vacate or not vacate based on their sound exercise of judicial discretion applied to the facts of each case.” Write to Kerry Curry.