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Foreclosure ruling gives Palm Beach County family another chance at keeping …


By Kimberly Miller

Palm Beach Post Staff Writer


Updated: 8:38 p.m. Friday, March 30, 2012

Posted: 7:14 p.m. Friday, March 30, 2012

A Palm Beach County family that lost its home in a 2010 foreclosure judgment is getting another shot at its case after the 4th District Court of Appeal said a lower court was premature in ruling for the bank.

In the case, Dilcia Osorto v. Deutsche Bank National Trust Co., the homeowner was seeking evidence from the bank when the final foreclosure judgment was entered by a Palm Beach County circuit judge.

Appeals court Judge Mark Polen said in the Wednesday decision that the judgment should not have occurred until the defendant’s discovery was complete. The ruling sends the case back to the circuit court.

Homeowner attorney Brian Korte, of Korte Wortman in West Palm Beach, said he had requested information about a trust that is said to hold Osorto’s mortgage when the summary judgment was granted.

“The question is, does the trust even exist, and what we find is when we finally get a deposition taken is that no one has ever talked to the trust, they don’t know what the address is, they don’t know if the trust has employees,” Korte said. “That’s why trust cases have become difficult for the banks.”

Osorto, 44, bought her suburban Lake Worth home in 2006 for $242,000. A job loss left her husband bringing in less money, and in 2008 the bank filed for foreclosure.

The final judgment was awarded in September 2010, and the home was sold back to the bank at auction in March 2011, according to court records.

The family is staying in the home pending the appeal.

“We told the plaintiff they should not evict our client because the new owners could ultimately be rejected and our clients put back in,” Korte said.

The Boca Raton-based law firm Shapiro, Fishman Gache represents the bank in the case. The attorney was not available Friday.

Korte said the law is clear that a summary judgment shouldn’t be awarded when there is outstanding discovery, but that straightforward rules don’t always seem to apply in foreclosure cases.

Foreclosure defense attorney Tom Ice, of Ice Legal in Royal Palm Beach, agreed, saying the 4th DCA ruling is remarkable only in that it shouldn’t be remarkable.

“It’s not newsworthy except for the fact that the court is saying the rules apply to foreclosure cases too,” Ice said.

Korte said banks are more willing to do loan modifications when a mortgage is buried too deep in a trust.

“W hen you hunt the trust down, you find it was closed five years ago and bought by someone else,” he said. “That’s usually when the clients get a very nice loan modification or the case is dismissed.”

Article source: http://www.palmbeachpost.com/money/foreclosures/foreclosure-ruling-gives-palm-beach-county-family-another-2272701.html

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