Ruling in Wellington case could further complicate Florida foreclosures

Article Courtesy of The Palm Beach Post

By Kimberly Miller

Published September 9, 2011

In a decision that could have staggering implications on foreclosure proceedings statewide, an appeals court ruled Wednesday in favor of the owners of a Wellington home whose bank filed documents sworn to by employees with no personal knowledge of the case.

The ruling from the 4th District Court of Appeal reversed in part a 2010 Palm Beach County Circuit Court summary judgment that said homeowners Gary and Anita Glarum owed LaSalle Bank $422,677.

That amount was based on an affidavit of indebtedness signed by loan servicer employee Ralph Orsini, who pulled the information from a company computer -- a move that appeals court judges said amounts to hearsay.

"Orsini did not know who, how, or when the data entries were made into Home Loan Services' computer system," the decision states. "Orsini could state that the data was accurate only insofar as it replicated the numbers derived from the company's computer system."

The ruling means the home on Amesbury Court, which has been in foreclosure since September 2008, can't go to a foreclosure sale until the bank either gets another summary judgment or goes to trial. The Glarums still live in the home.

Tom Ice, whose firm Ice Legal represents the homeowner, said Wednesday's decision hits at the essence of the nation's foreclosure robo-signing scandal in which tens of thousands of foreclosure court documents were signed by people swearing that they had personal knowledge of cases when they did not.

While some lenders called the document problem a technicality, foreclosure defense attorneys called it perjury and fraud.

Foreclosures came to a virtual standstill in the fall after the robo-signing revelations were made as banks worked to revamp their processes and redo paperwork where they could.

Between July 1, 2010, and June 30 of this year, 104,126 foreclosure cases were dismissed in Florida's courts, often by lenders needing to refile pertinent paperwork.

"Bank officers cannot simply regurgitate what they read off computer printouts," Ice said. "This has been a major battleground in foreclosure cases."

A message left for the bank's legal representative, Orlando-based Butler & Hosch, was not returned Wednesday.

The appeals court ruling was called "rock solid" by Sarasota-based attorney Henry Trawick, an expert on Florida's judicial rules and author of Trawick's Florida Practice and Procedure.

He said a valid affidavit of indebtedness would have to be sworn to by the person who actually entered the information into the computer system. He expects the decision to further snarl Florida's courts.

"I think a whole lot of summary judgments on these foreclosures are not valid because of this," said Trawick, who is also concerned about how allegedly bogus affidavits will affect getting clear title to homes. "The real problem ahead of us is years to come when all these properties are being sold."

But not everyone is convinced of the magnitude of Wednesday's decision.

Palm Beach County Chief Judge Peter Blanc said while it sets precedent for similar cases, it's too early to tell what the implications will be.

Fort Lauderdale attorney Shari Olefson, who represents banks in foreclosure cases, said the ruling doesn't change what's been going on since the robo-signing scandal broke.

"The people I've been talking to have set aside affidavits and have to start all over again," she said. "This is pretty consistent with the way things have been going."