What Level of Proof Does a Mortgage Foreclosure Require?

A basic legal principle is that someone must be entitled to enforce the right regarding which he or she is seeking a remedy. This requires regarding mortgages that the creditor who is pursuing a foreclosure that that business currently has the right to enforce the mortgage’s terms.

Interested in knowing your rights and obligations in a foreclosure proceeding? Schedule a consultation and you'll speak with a Palm Beach Foreclosure Attorney. Just call our office at (561)472-0919 or complete and submit a Consultation Request form to your right.

Mr. Gurrera challenging a creditor’s right to foreclose a mortgage brought the foreclosure proceedings in Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group (A.I.M.) before the Florida 4th DCA (appeals court.) 

The appeals court covers Palm Beach County. It issued its decision in the current case on November 23, 2011. 

Mr. Guerra, as president of Venture Holdings & Acquisitions Group, granted A.I.M. a mortgage on real property. A.I.M. initiated foreclosure proceedings after Venture defaulted on the mortgage.

A.I.M. asserted in the complaint that initiated the foreclosure proceedings that it owned and held the mortgage on Venture’s property. However, A.I.M. had assigned the mortgage to a third party as collateral for a loan before pursuing the foreclosure.

The trial court granted A.I.M.’s request for a judgment without a trial. The trial court knew of the assignment of the mortgage when it issued that decision.

The appeals court reversed the award of a judgment without a trial. The appeals court also returned the matter to the trial court for a full trial on the merits of A.I.M.’s arguments regarding its right to a foreclosure.

The appeals court reasoned that A.I.M. assigning its rights regarding the mortgage created a “genuine issue of material fact” regarding its right to a foreclosure.

The appeals court quoted text from Laing v. Gainey Builders, Inc., 184 So 2d 897 (Fla. 1st DCA 1966.) That decision stated clearly that “the assignee of a mortgage and note assigned as collateral security is the real party in interest, that he holds the legal title to the mortgage and note, and that he, not the assignor is the proper party to file a suit to foreclose the mortgage.”

The appeals court concluded simply next that, under the standard that Laing described, A.I.M. lacked standing to foreclose on Venture’s property when A.I.M. initiated the foreclosure proceedings.

The appeals court noted as well that A.I.M. not producing the original note, not accounting for that absence, and not adequately showing that A.I.M. properly held the note precluded granting A.I.M. a judgment without a trial.

A simple way of understanding the appeals court’s decision is that obtaining expedited relief requires presenting adequate proof that your right to that remedy is undisputed.

Interested in knowing your rights and obligations in a foreclosure proceeding? Schedule a consultation and you'll speak with a Palm Beach Foreclosure Attorney. Just call our office at (561)472-0919 or complete and submit a Consultation Request form to your right.