The Clerk of Court is Not the Best Bailee for Your Negotiable Instrument, Second DCA Holds

The Second District last week reversed a judgment of foreclosure, holding that Nationstar–the servicer of the loan at issue–could not establish it was the holder or nonholder in possession of a Note via possession by the clerk of court.

Years prior to the suit that led to the opinion in Partridge v. Nationstar Mortgage, LLC, 2D16-3081 (Fla. 2D DCA Aug. 11, 2017), lender Bank of America had filed the original note and mortgage with the trial court in a different foreclosure action.  That action was ultimately dismissed, but the original note and mortgage were left in the circuit court clerk’s possession.

Nationstar then began servicing the loan, and ultimately filed a foreclosure action of its own.  Nationstar did not take possession of the Note, but instead moved the trial court to take judicial notice of the originals and transfer them to the new action.  Ultimately, the trial court entered judgment of foreclosure for Nationstar, and the homeowner appealed.

On appeal, the Second District held that Nationstar had failed to establish standing because it did not show it possessed the original note.  The court rejected Nationstar’s contention that it “was using the clerk [of the court] as bailee to continue possessing the note on its behalf,” holding that Nationstar’s “unilateral decision to leave the original note and mortgage with the trial court does not establish possession of the note.”

This case demonstrates another of the many ways in which lenders and trial courts often misunderstand the issue of standing.  We at DPW Legal regularly handle appeals for homeowners who have found themselves with a foreclosure judgment against them.  If you find yourself in such a scenario, feel free to contact us so we can help you determine whether you might have a basis for appeal.

 

Supreme Court E-Filing to Begin Nov. 13, 2017

Last week we reported that the Supreme Court of the United States went live with their new website–its first step of a modernization plan that includes e-filing.  Yesterday, the Court set a date for e-filing to begin and provided some details.

According to the Court’s press release, e-filing will begin on November 13, 2017.  Parties will be required to file both paper and electronic copies, with the paper copy being the official copy for now (so remain vigilant with your mailing and paper filing practices!).  Pro se parties will continue to file just paper, but the Court will scan all filings to make them available on the electronic system.  That system should provide easy website access to all filed documents for public access.

Registration for the new e-filing system will begin “4-8 weeks before the system begins operation,” so keep a lookout for another press release at about mid-September.  The Court has placed an “Electronic Filing” link in the center of its home page that it says will supply additional information, but currently contains only the text of the press release.

A recent video from the U.S. Courts shows the amazing efficiencies obtained from e-filing in other federal courts.  Presumably the same benefits of modernization will occur in the Supreme Court.  That said, one wonders what the new, leaner Supreme Court will look or feel like.  We can’t help but feel a bit nostalgic for the days of paper as this bastion of traditional practice updates for the twenty-first century.

 

 

Eleventh Circuit Amended Rules Go Into Effect Today With Minor Changes

Eleventh Circuit Court of Appeals, Atlanta

Eleventh Circuit Court of Appeals, Atlanta

Amendments go into effect today, August 1, 2017, for six of the Eleventh Circuit’s local rules.  The changes are minimal and, on the whole, positive for parties and practitioners alike.

  • 11th Cir. R. 22-3:  The use of the clerk’s form for filing “a second or successive habeas corpus petition or motion to vacate, set aside or correct sentence” is no longer required, but merely encouraged in some cases.
  • 11th Cir. R. 31-1(d):  In addition to jurisdictional questions on main appeals, the rule now also contemplates potential jurisdictional questions on cross-appeals, expressly providing for postponement of the due date of the appellee-cross-appellant’s brief until the court determines that the appeal should proceed.
  • 11th Cir. R. 42-2(e):  A motion to set aside a dismissal of a civil appeal for failure to file a brief or appendix must now only be accompanied by the missing document, not both as previously required.
  • 11th Cir. R. 46-1:  Incorporates some of the content from FRAP 46, IOP 3 regarding attorney admission fees, and replaces specific payment information with references to 11th Cir. R. 46-3 and the court’s website.
  • 11th Cir. R. 46-2: deletes the specific dollar amount required for bar membership renewal, instead referencing the court’s website.
  • 11th Cir. R. 46-4: deletes payment information, instead referencing the court’s website.

You can view the full text of the updated rules here [.pdf].  Give us a call if you have a federal appeal coming up–we’re experienced in navigating the numerous technicalities of the federal appellate rules.