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The following article was written by Kim Miller ?for ?The Palm Beach Post?and republished in?The South Florida Law Blog.
A Boca Raton homeowner whose waterfront mansion has been in foreclosure since 2008 had her case voluntarily dismissed by her lender Thursday in Palm Beach County court after a legal misstep during trial.
Because the case is so old, homeowner attorney Roy Oppenheim said the bank may run into trouble trying to refile it. There is a 5-year statute of limitations on foreclosures.
Homeowner Valerie Kaan bought the 13,000-square-foot home in 2003 for $8.4 million. Her loan was for $6.8 million from Washington Mutual Bank, which was later purchased by JP Morgan Chase. The outstanding balance as of Thursday was up to about $10 million with late fees, taxes and insurance, Oppenheim said.
?I always tell my clients that a good settlement is usually in everyone?s best interest but in this case, for some reason, the bank did not recognize their own foibles,? Oppenheim said. ?Maybe this will send a message to banks that when people come to the table in good faith with a reasonable offer, they should more seriously consider it.?
Oppenheim said Kaan was in negotiations for a short sale and loan modification for two years before negotiations broke down.
Chase declined comment.
At Thursday?s foreclosure trial, Oppenheim said the bank tried to introduce the original ?wet ink? note, which had allegedly been lost previous to the 2008 foreclosure filing.
But because the bank did not amend its pleadings to include the note or notify the borrower and the court that it existed, the move violated civil procedure, Oppenheim said.
The court docket reflects that the original note was filed in the case in 2009, but its existance wasn?t included in Thursday?s pleading.
The voluntary dismissal was signed by Circuit Judge Roger Colton. He also gave Kaan attorneys? fees and costs.
?Our firm _ three lawyers _ were saddled up ready to go to trial and they sprung on us at the last minute a new set of facts,? Oppenheim said. ?It was trial by ambush and judges won?t put up with that.?
Associate lawyers Jeff Sherman and Jacquelyn Trask worked on the case with Oppenheim.
Real Estate and Foreclosure Defense Attorney, Roy Oppenheim
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Real estate attorney and foreclosure defense attorney, Roy Oppenheim left Wall Street for Main Street, founding Oppenheim Law along with his wife Ellen in 1989 in Fort Lauderdale, Florida, and is vice president of Weston Title and creator of the South Florida Law Blog, named the best business and technology blog by the South Florida Sun-Sentinel. Follow Roy on Twitter at @OpLaw or like Oppenheim Law on Facebook.
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