Thursday, April 15, 2010

Homeowner gets free house when Florida Judge throws out lender's case

Pasco county Florida resident, Ernest Harpster will be getting a “free house” based upon the ruling of Circuit Judge Lynn Tepper. In an order dated March 25, 2010, Judge Tepper dismissed with prejudice the foreclosure lawsuit that was filed against Mr. Harpster by US Bank National Association as trustee for a securitized mortgage trust.

The judge’s ruling followed a hearing that was scheduled to be commenced at 3:00 p.m. According to the Court order, the law firm for the Bank of America, David Stern, P.A. failed to appear either in person or by phone for the hearing. The matters that were scheduled to be heard were a Motion to Compel Responses to Interrogatories and Request for Production; Amended Motions in Limine regarding the Promissory Note and a Second Motion in Limine/Motion to Strike based on an allegation of fraud on the court; and finally a Motion for Rehearing."

The Court found that U.S. Bank’s counsel failed to produce answers to interrogatories (written questions to be answered under oath) for an astounding twenty-six (26) months.

The Defendant's Motion in Limine/Motion to Strike was based on an allegation that the Assignment of Mortgage was created after the filing of the lawsuit, but the document date and date the document was notarized were purposely backdated by the Plaintiff to a date prior the filing of this foreclosure action.

The attorney for the homeowner discovered this apparent fraud because the assignment was allegedly signed and notarized on December 5, 2007. The notary’s stamp designating when the notary’s license expired had a May 19, 2012 expiration date. Since Notary licenses are only good for four years, a notary license that expires on May 19, 2012 would have been issued four years earlier on Mary 19, 2008. As such the notary license would not have been issued and did not exist on December 5, 2007 when the assignment was alleged to have been executed.

According to the Court order, the notary who notarized the “back-dated” document was Terry Rice. Homeowners and their attorneys who have pending foreclosure cases should be on the lookout for other assignments and affidavits by Terry Rice which might be forged, fraudulent, or back-dated.

The court specifically found “that the purported Assignment did not exist at the time of filing of this action; that the purported Assignment was subsequently created and the execution date and notarial date were fraudulently backdated, in a purposeful intentional effort to mislead the Defendant and this Court.”

Judge Tepper ruled “The Plaintiff's complaint is dismissed with prejudice, based on the fraud intentionally perpetrated upon the Court by the Plaintiff. This Court has the power to dismiss a case a showing of a commission of fraud on the Court by a party.” She further ruled that “The Defendant shall go henceforth without day” which means that the Plaintiff, U.S. Bank will not recovery any money and will note be able to re-file the lawsuit. Judge Tepper also ruled that U.S. Bank will have to pay the homeowner’s attorney’s fees.

Our law firm did not participate in this case. Usually I only write about cases our firm was involved in. This case is discussed so that the public becomes aware of the underhanded tactics some banks and some lawyers are using to wrongfully foreclosure on Floridians’ homes. Unfortunately, Judge Tepper’s order did not include the name of the homeowner’s lawyer whose work was extraordinary. (Update we have since leaned that the homeowners lawyer was Tampa attorney Ralph Fisher) This case illustrates what a tremendous difference a talented litigator can make. Some lawyers practice “foreclosure delay” and think that filing a motion for extension of time is sufficient to defend a foreclosure case. At our firm, we listen to our clients to determine their objectives and design a strategy unique to their case and goals. Then we put that plan into action. When we defeat lender motions for summary judgment it is not by accident, rather it is because through discovery requests, depositions, and motions to compel we have obtained the evidence needed defeat the lender’s motion.

If you believe that an assignment of mortgage in your cases was fabricated or back-dated we will review the assignment on a complementary basis. If the assignment is dated after the date the foreclosure lawsuit was filed against you, the lawsuit should be dismissed. To Homeowners with questions about this blog can contact the author at To view a complete copy of the Court's order as a PDF / Adobe Acrobat document click here

For more information about Shuster & Saben's defense of homeowners in foreclosure in Miami-Dade, Broward, Palm Beach, Collier, Lee, Martin, St. Lucie, Indian River, Brevard, Orange, and Volusia counties please visit