Foreclosure ruling irks banks
Article Courtesy of The Palm Beach Post
By Kimberly Miller
Published October 21, 2011
WEST PALM BEACH — An appeals court ruling in favor of Wellington homeowners in foreclosure is causing "calamitous confusion," according to bank attorneys who say it could snarl hundreds of thousands of pending foreclosure cases.
The bank is asking for a rehearing and clarification of the Sept. 7 decision by the 4th District Court of Appeal, which said a foreclosure affidavit submitted by a bank employee was hearsay because the person relied on computerized information and did not have personal knowledge of the case.
The lack of personal knowledge of foreclosure documents is the foundation of the robo-signing controversy that continues to delay foreclosure proceedings.
The bank is not challenging the court's decision in Gary and Anita Glarum vs. LaSalle Bank, but it said the ruling has been misinterpreted to mean that the person relying on computerized records must be the one who actually entered them into the computer or the direct custodian of the records.
Considering how often home loans changed hands during the real estate boom and subsequent collapse, finding people who personally input mortgage data could be impossible.
The request for rehearing says the court may have "inadvertently undermined" Florida's rules for the admission of business records which, in part, allow a "qualified witness" to attest to the accuracy of computerized records.
Attorney Tom Ice, whose Royal Palm Beach firm Ice Legal is representing the Glarums, said the bank is trying to make it appear that the ruling will bar them from ever winning another foreclosure judgment.
He said it will just make them work harder for one. Instead of submitting a single robo-signed affidavit, they'll need the appropriate employees to swear to the veracity of documents - how they are received, put into the computer and processed.
"It was always ludicrous that one person could testify to all these issues in one affidavit," Ice said. "In my opinion, they are trying to take a shortcut. The Glarum decision signals you will have to bring witnesses that have personal knowledge. It's not a change in law. It's how everyday cases are decided all the time."
Still, the case has bank representatives on alert. The national law firm of Greenberg Traurig warned its lawyers it could "dramatically change the foreclosure landscape in Florida."
"This decision could have broad, sweeping application in the lending and loan servicing industries and affect thousands of foreclosure cases, among other types of cases currently pending in Florida courts," the firm said on its website.
The ruling means the Glarums' home, which has been in foreclosure since September 2008, can't go to a foreclosure sale until the bank gets another summary judgment or goes to trial.