Violation of a pooling and servicing agreement is no longer a valid defense

In a recent case Castillo v. Deutsche Bank Nat’l Trust Co., 89 So. 3d 1069 (Fla. 3rd DCA 2012) the homeowner challenged the bank’s standing to bring a foreclosure action against her, arguing that the plaintiff, a common-law trust, failed to comply with its pooling and servicing agreement when it took possession of the original note and mortgage and thus the trust cannot legally be in possession of the note and mortgage when it was obtained in violation of its trust documents.

The 3rd DCA held that because the homeowner was neither a party to nor a third party beneficiary of the trust, the homeowner lacked standing to raise the issue.,10&case=5011992574938815897&scilh=0

Lack of standing must be raised as affirmative defense

It may seem like there are a lot of successful appeals out there, but it’s not the case.  In fact, most appeals go nowhere.  In the case Pacheco v. Indymac Federal Bank (Fla. 4th DCA July 5, 2012), the trial court’s denial of homeowner’s motion for relief from final judgment was affirmed, because Pacheco pro se had failed to raise lack of standing as affirmative defense, and only raised it for the first time months after the final judgment.,10&case=15519891330839907145&scilh=0

The homeowner also raised the issue of fraud, but the Fourth District found he didn’t specify the fraud, other than that the bank did not have standing at the time it filed the lawsuit, and didn’t explain why the fraud would allow the court to set aside the judgment.  The court of appeal referred to its earlier opinion in Freemon v. Deutsche Bank, 46 So. 3d 1202, 1204 (Fla. 4th DCA 2010), which set parameters to satisfy the burden of showing fraud with precision.,10&case=6453393956071046544&scilh=0

Bank’s failure to negate affirmative defenses

In a recent case Good v. Deutsche Bank (Fla. 4th DCA July 25,2012) the court of appeal reversed the lower court final judgment of foreclosure where the bank failed to negate affirmative defenses.,10&as_ylo=2012&case=2663953135371856419&scilh=0

One of the Good’s affirmative defenses was based upon violation of RESPA.  Deutsche Bank filed an affidavit controverting the affirmative defense due to failure to allege the violations with specificity.  In response,

Good filed an affidavit stating the originator of the loan paid the broker a yield spread premium of $8,400 and a broker fee of $5,600.  The trial court granted final summary judgment of foreclosure.

The court of appeal found Good’s affidavit created disputed issues of material fact: whether the payment of a yield spread premium constituted a kickback/referral fee in violation of RESPA.  The court of appeal instructed the lower court, however, that on remand the determination will be limited to whether there was a RESPA violation, and if so, the amount to be set-off from the amount due on the mortgage.