Fraudclosure Fail | ROMAN PINO vs THE BANK OF NEW YORK – Florida Supreme Court: We Can't Stop the Fraud

Homeowners Lose in Landmark Foreclosure Decision

From the PB POST...

A Florida Supreme Court ruling involving a Greenacres foreclosure allows banks to get away with fraud, as long as they voluntarily dismiss the case, attorneys said today.

The case, Roman Pino v. the Bank of New York, was the first significant foreclosure complaint heard by the high court since the state’s legendary housing collapse.

At issue was whether a bank can escape punishment for filing flawed or fraudulent documents in a case by voluntarily dismissing it. A voluntary dismissal allows the bank to refile at a later date.

Royal Palm Beach-based foreclosure defense attorney Tom Ice, who represented Pino, had challenged a document created by the former Law Offices of David J. Stern and sought to question employees about its veracity. On the eve of those depositions, the bank moved to dismiss the case, blocking the court’s ability to address any sanctions.

“I would say the Supreme Court has spoken loud and clear that it doesn’t care about litigants that abuse the court system and that fraud is OK,” Ice said about the ruling. “There are no ramifications if you get caught defrauding the court. Just take a voluntary dismissal and start over.”

The case was unusual because the Supreme Court decided to pass judgment on the case even after Ice had negotiated a settlement with the bank that allowed his client to keep his house.

Florida law professors said the case, which was heard by the Supreme Court in May, was significant because it speaks to the integrity of Florida’s judiciary.

The 4th District Court of Appeal had previously agreed that a voluntary dismissal couldn’t be reversed, but said it wanted the high court to weigh in because “many, many mortgage foreclosures appear tainted with suspect documents.”

Banks warned of a “widespread financial crisis” if the Supreme Court rules in favor of Pino.

They argued banks will cut back on awarding home loans and be discouraged from filing legitimate claims if, when they find a paperwork error, they can’t voluntarily dismiss the case, correct the error and refile.

“With large numbers of defaulted loans in their portfolios, members of the Mortgage Bankers Association and Florida Bankers Association no doubt occasionally will make clerical errors, lose promissory notes, or discover other deficiencies in their foreclosure complaints that mandate correction in the interest of fairness,” the brief states.

Ice made headlines with the Pino case in 2010 when he was featured in a national magazine article about Florida’s so-called “foreclosure mills” and the discovery of allegedly fraudulent documents.

The robo-signing scandal was just breaking at the time, Florida’s foreclosure “rocket dockets” were full speed ahead, and David J. Stern’s Plantation-based firm was a foreclosure empire handling more than 100,000 cases statewide. It has since closed after losing most of its clients in the wake of the scandal.

Lenders halted home repossessions to revamp and rework cases. Beginning last year, foreclosures ramped up again.

“The banks won again, and like everything else in this state, we missed the chance to just say ‘stop,’” said St. Petersburg defense attorney Matt Weidner about the Pino ruling. “This is the final piece, we have legalized bank fraud and we now have a court system, an entire judicial system, that supports fraud.”

CONCLUSION FROM THE FL SUPREME COURT OPINION

Based on the above, we answer the certified question in the negative. We hold that when a defendant alleges fraud on the court as a basis for seeking to set aside a plaintiff’s voluntary dismissal, the trial court has jurisdiction to reinstate the dismissed action only when the fraud, if proven, resulted in the plaintiff securing affirmative relief to the detriment of the defendant and, upon obtaining that relief, voluntarily dismissing the case to prevent the trial court from remedying the effects of the fraudulent conduct. Any affirmative relief the plaintiff obtained against the defendant as a result of the fraudulent conduct would clearly have an adverse impact on the defendant, thereby entitling the defendant to seek relief to set aside the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b)(3).

In this case, because BNY Mellon did not obtain affirmative relief before taking the voluntary dismissal, the trial court did not have jurisdiction to reinstate the dismissed foreclosure action for the purpose of dismissing the action with prejudice. We also conclude that the trial court did not have the inherent authority to strike the notice of voluntary dismissal. Because Pino sought no other available sanctions, and the case has since been resolved between the parties, we need not reach the question of whether the trial court should be able to award monetary sanctions under the circumstances of this case. We therefore approve the result reached by the Fourth District affirming the trial court’s denial of Pino’s motion.

While affirming the decision of the Fourth District, we also understand the concerns of those who discuss the multiple abuses that can occur from fraudulent pleadings being filed with the trial courts in this state. While rule 1.420(a)(1) has well served the litigants and courts of this state, we request the Civil Procedure Rules Committee review this concern and make a recommendation to this Court regarding whether (a) explicit sanction authority should be provided to a trial court pursuant to rule 1.110(b), even after a case is voluntarily dismissed, (b) rule 1.420(a)(1) should be amended to expressly allow the trial court to retain jurisdiction to rule on any pending sanction motions that seek monetary sanctions for abuses committed by either party during the litigation process, or to allow the trial court explicit authority to include attorney’s fees in any award to a party when the dismissed action is reinstated, or (c) to adopt a rule similar to Federal Rule 11 to provide explicit authority for the trial court to impose sanctions.

It is so ordered.

LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.
POLSTON, C.J., and CANADY, J., concur in result only.

Florida Supreme Court Oral Arguments
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