A court of appeals with a reputation for issuing adverse opinions against borrowers in foreclosure cases has ruled against a major mortgage servicing company.
In an opinion issued Wednesday, the Third District Court of Appeal vacated a trial court’s ruling concerning Deutsche Bank National Trust Co.’s foreclosure action against Ricardo Garcia, and remanded the case for further proceedings in the borrower’s favor.
The appellate court found that the lower court ultimately lacked jurisdiction when it entered the final foreclosure judgment, because the case had been removed to federal court just one day prior.
Read the opinion:
“State court jurisdiction ceases upon removal of a case to federal court, and any pre-remand proceedings occurring in the state court after the case has been removed are void,” the opinion said. Citing precedent, the opinion held that “even an improper removal to federal court, or a removal for improper motives, will not preserve state court jurisdiction.”
The foreclosure case against Garcia was removed to federal court after one of his tenants filed a cross-complaint against the borrower and his wife for allegedly violating the federal Truth in Lending Act. The tenant’s complaint alleged that the Garcias had communicated that “the subject mortgage had been rescinded.” This alleged misrepresentation entitled the renter to remain in the property, according to the tenant, who filed to remove the entire foreclosure action to federal court on July 10, 2017.
By July 19, 2017, the federal court had remanded the case back to the circuit court. But during that time — just one day after the removal — trial judge Lisa S. Walsh had entered the final foreclosure judgment in Miami-Dade Circuit Court.
It was the second time that a Garcia tenant had stepped into the fray. Months earlier, in January, a different renter had “filed an identical cross-complaint and sought removal of the entire case to federal court,” according to the appellate ruling. The U.S. District Court also remanded that case back to the circuit within weeks.
Now the question was whether Walsh’s ruling would stand.
“Because the trial court lacked jurisdiction to enter the final judgment, we are compelled to reverse the final judgment and remand for proceedings consistent with this opinion,” Third DCA Judge Edwin A. Scales III wrote in a unanimous decision with Judges Kevin Emas and Ivan F. Fernandez.
Deutsche Bank National Trust Co.’s attorney, Shawn Taylor of Fort Lauderdale’s DeLuca Law Group, cited pending litigation in declining to comment.
The Third District Court of Appeal has cultivated a reputation for disproportionately ruling against borrowers in foreclosure cases. In February, Fort Lauderdale attorney Evan M. Rosen issued a news release titled “What’s wrong with Florida’s Third District Court of Appeal?” In it, he compiled data illustrating that the Third DCA rules against homeowners far more than other Florida appellate courts. He found, for instance, that South Florida’s other appellate state court, the Fourth DCA, ruled for homeowners 73 percent of the time, compared to the Third DCA’s 13 percent. The Second DCA found for homeowners 84 percent of the time, the First 83 percent and the Fifth DCA 72 percent.
“Statistics reveal what experienced Florida foreclosure attorneys already know,” Rosen wrote in his release. “The Third District Court of Appeal has an issue properly adjudicating foreclosure cases.”