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Florida High Court Permits Banks to Avoid Liability for Wrongful Foreclosures by Dismissing Them - Pino v. Bank of New York Mellon

February 21, 2013

Vincent Howard and our Mira Loma foreclosure defense attorneys have kept an eye on the Florida case of Pino v. Bank of New York Mellon. In this case, Roman Pino and his attorney moved for sanctions against the bank that filed Pino's foreclosure case, after finding evidence that the foreclosure was fraudulent. The bank voluntarily dismissed the case before the trial court could do so, and the trial court and appeals court later declined to reinstate the case in order to impose sanctions--even after the bank re-filed the case using different documents. In the latest decision, the Florida Supreme Court ruled that courts cannot revive voluntarily dismissed cases, but asked a committee of the Florida State Bar to suggest changes to the rules that would permit rulings on sanctions in such cases.

The foreclosure case was filed against Roman Pino of Greenacres, Florida, in 2008. Pino was in default, but BNYM's supporting documents showed that other entities had the right to foreclose. Pino moved to dismiss, citing the lack of proof that BNYM had the right to foreclose; BNYM followed with an amended complaint including documents Pino claimed were fraudulently backdated. He moved for sanctions, but before discovery could proceed, BNYM voluntarily dismissed the case.

Five months later, the bank started a new foreclosure case, this time using documents showing an assignment dated after the last case was dismissed. Pino moved to strike the voluntary dismissal in the last case, citing fraud on the court and requesting dismissal with prejudice as a sanction. BNYM argued that fraud on the court can only reopen a case when the allegedly fraudulent party had obtained relief. After a hearing, the trial court agreed. So did the Fourth District Court of Appeal. Pino appealed to the Florida Supreme Court, but tried to dismiss his appeal after he came to an agreement with the bank. Citing the public importance of the case, the Florida Supreme Court decided it anyway.

The high court unanimously found that fraud on the court cannot reopen a case without a showing that the moving party--Pino, in this case--was adversely affected by the voluntary dismissal. To show the adverse effect, parties must be able to show affirmative relief granted to the other side, the high court said. In this case, however, it was not disputed that BNYM obtained no affirmative relief before the dismissal. Thus, it said, the facts of the case and the Florida Rules of Civil Procedure simply don't allow defendants like Pino to set aside voluntary dismissals. The Supreme Court noted that other safeguards exist to prevent abuses, including rules requiring any second voluntary dismissal to be with prejudice. It said it understood concerns about potential abuses of the ruling, so it asked the state Bar's Civil Rules Committee to recommend possible changes permitting post-dismissal sanctions.

This case has generated a lot of criticism among Florida attorneys who believe it opens the door for fraud to go unpunished by the state's courts. But Vincent Howard and our Fountain Valley foreclosure defense lawyers believe the case actually has the potential to open the door for better rules. The case appears to have been decided solely on the existing rules. If the Florida State Bar's rules committee does recommend making a change to the rules, it could provide a way for courts to reopen cases involving sanctions, thus eliminating the apparent loophole that allowed the bank in this case to avoid the consequences of its actions. A rule from the rules committee may take longer, but it might be harder to overturn than a court ruling. Vincent Howard and our Highland foreclosure defense attorneys would certainly prefer to see one or the other.

If you believe your foreclosure resulted from fraud or deceit when you took out the loan--or when you tried for a loan modification--Howard Law, P.C., may be able to help. Call us today at 1-800-872-5925 to tell us about your case, or send us an email.

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