Buset Update: HSBC Challenges Foreclosure Dismissal Amid Claims of ‘Unclean Hands’


BY Samantha Joseph/Daily Business Review, South Florida

Things looked grim for HSBC Bank USA N.A. last year when it faced involuntary dismissal of its case after a bench trial and sanctions for prosecuting a foreclosure suit with “unclean hands.”

Back then, the trial judge sided with borrowers accusing the bank of building its case on a forged mortgage assignment and granted their request to force the financial institution to show why it shouldn’t be punished for committing a fraud on the court.

But HSBC seems off to a strong start on appeal—at least in its challenge of one aspect of the lower court’s order—having survived a motion to dismiss its case as premature before a state appellate panel.

The foreclosure pitted HSBC, as trustee for FR Fremont Home Loan Trust mortgage-backed certificates, against homeowners Joseph and Margaret Buset.

The Busets’ lawyers, Bruce Jacobs and Court Keeley of Jacobs Keeley in Miami, sought to block a review in the Third District Court of Appeal. They claimed the Third District Court of Appeal lacked jurisdiction because the lower court was still weighing evidence and had reserved jurisdiction to impose sanctions and award attorney fees. Jacobs said a dismissal would allow “the Third DCA (to) make a ruling based on everything we know on the issue, as opposed to having successive appeals over and over.”

But HSBC’s challenge covered only one aspect of the ruling—the involuntary dismissal of its mortgage foreclosure—and that portion contained language entering judgment and therefore making it ripe for appeal, according to the judicial panel.

“The trustee does not seek appellate review of either the order’s reservation of jurisdiction to award prevailing party attorney fees or the order’s reservation of jurisdiction to impose sanctions,” Judge Barbara Lagoa wrote for the Third District Court of Appeal.

The ruling opens the door for the bank to continue challenging dismissal of its foreclosure suit.

“It is well established that a trial court’s reservation of jurisdiction to award fees, costs or sanctions does not affect the finality of a judgment,” Lagoa wrote in a unanimous decision with Judges Kevin Emas and Thomas Logue.

Kimberly Mello and Jonathan Tannen of Greenberg Traurig represent HSBC.

The litigation grabbed headlines in May after Miami-Dade Circuit Judge Beatrice Butchko issued a ruling finding financial companies handling and trading the Busets’ debt relied on a fraudulent assignment of mortgage.

“This court finds the AOM created in 2012 does not document a transaction that occurred in 2005 as plaintiff suggests,” Butchko ruled. “The transaction described in the AOM never legally occurred. There was never a transaction between MERS and/or Fremont Investment and Loan that sold defendant’s loan directly to the trust. Not in 2012, not in 2005, not ever.”

But the Third DCA found the judge’s involuntary dismissal of the complaint after a bench trial did not adhere to best practices, and that Butchko should have instead entered a final judgment on the merits, instead of tossing the litigation.

A Brief Summary of Thoughts on Yvanova Decision

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see http://www.prnewswire.com/news-releases/court-decision-to-shake-up-lending-market-says-leclairryan-attorney-300226113.html

Lawyers for banking are advising banks to brace themselves. The

party for them may be nearing its end. Here is a quote from one of the bank lawyers:

“The Supreme Court’s recent ruling in Yvanova v. New Century Mortgage Corporation will have a profound impact on the lending industry,” said McWhorter, whose practice focuses on representing financial institutions and business entities in commercial, business and bankruptcy litigation. Under the ruling, a borrower can challenge a non-judicial foreclosure sale by alleging that there was a break in the chain of assignments of the beneficial interest in the deed of trust and that sale was void.

“This decision strikes down a long line of decisions that stood for the proposition that defaulting borrowers lacked standing to challenge such assignments,” noted McWhorter. “This decision may increase the filing of wrongful foreclosure actions against lenders, challenging the validity of the assignments based on alleged violations of pooling and servicing agreements by lenders.”

“Although the Court itself called its ruling a narrow one, the implications are quite wide: many courts look to California for legal leadership, so this case could have national ramifications,” McWhorter said.

I have not completed analyzing Yvanova. But here is my current summary of its significance.


First, it stands for the proposition that if the assignment of mortgage is void (not voidable) then it has no legal effect and it cannot be ratified by anyone, because you can’t make a void act legal just by saying it is legal. That is something the banks have been getting away with for ten years. Judges were proceeding on the assumption that the borrowers owed money to SOMEONE it doesn’t matter to whom the debt is owed. The Yvanova Court recognizes that this is a dangerous assumption and is not a legal presumption.


It’s dangerous because it leads to what we have seen — a complete stranger to a transaction making a claim simply because they think they can get away with it. If that was the law, then people would be mining for “debts” and then suing on them regardless of the fact that the alleged “debt” was owed to someone else with whom the claimant had no legal relationship. This would lead to chaos.


So Yvanova stands for the proposition that if a foreclosure is initiated or completed at the behest of a party who is relying upon a void assignment, then that foreclosure is wrongful, and the borrower is entitled to damages. It might lead to a decision on title issues as well. Inferentially it also means that the investors whose money was used for this scheme also have an action for damages against an intermediate party who used self help to make it appear that they spoke for the unidentified “investor.”


The Yvanova court takes a strong stand on a very common sense notion — that only the owner of the debt can sue to collect or enforce the debt. And both tacitly and expressly the Yvannova court dispenses with the idea that it is more important to save the banks and their progeny than to apply the rule of law. The Glaski case is reaffirmed and the court reverses prior inconsistent rulings of other California appellate courts that somehow borrowers had no legal standing to attack ownership of the debt. The banks have been relying upon alleging that they are the “holder” of the note and arguing that ends the discussion. That would only be true of they purchased the note, which they did not. It would also be true if they had purchased the debt, which they never did.


And the fact that the Yvanova court chose to say that only the owner of the debt could collect or enforce is monumental, because this is the first clear cut decision that drills down to the reality of the fake transactions by which the banks have created a huge network of false transactions or transactions based upon a false premise — that the REMIC Trusts were actual owners of the debt. So Yvanova aims squarely at the strategy of the banks of alleging they are “holders” and then arguing to the court that they are “holders in due course.”  If the Trusts were holders in due course then they would allege that in litigation and it would mean they paid for the paper (the note) and therefore would take delivery of the note free and clear of any borrower defenses. Payment changes everything.


The change in judicial attitude is reflected on the Eastern seaboard in Florida where judges are listening more carefully to the arguments of alleged borrowers. Yesterday Patrick Giunta, Esq. obtained an order from a Florida judge in a foreclosure case where the discovery items were compelled — the foreclosing party must deliver documents and answer questions that heretofore had been just out of reach of homeowners who were saying to the foreclosing party “I owe you nothing. You are not my creditor.”


Now that the Courts are drilling down to the real transactions, the Wall Street Scheme of proprietary false initial offerings of false mortgage backed securities will start to unravel. In the analysis that I do of each case file where we are hired to perform a review and commentary, these new case decisions will figure strongly in my reports.




Editor’s Note: Matis Abravanel, practicing in South Florida has drafted and filed a motion that is a classic in its construction. The result was that BAC caved, which is good, but what really draws my attention to this work is its masterful presentation. Lawyers would do well to look carefully at this pleading. He carefully weaves the securitization facts into a language and context that any Judge can understand. And unlike the opposition he has the goods. So do you, if you know how to use them.

Matis H. Abravanel, Esq.


A Smith Hiatt and Diaz case in Broward County Florida…

Some short background information on this pleading, it’s an emergency
motion to cancel a final sale based upon Fraud on the Court. This
client came to us a month before his final sale date, and already had
a default and a final summary judgment entered against him. Besides
non-compliance with the pooling and servicing agreement, we uncovered
notary fraud (see paragraphs 1-4 and attached exhibits) and a
fraudulent assignment and endorsement of a note that was dated in
January of 2006, to U.S. Bank National Association, as successor
Trustee to Bank of America, National Association as successor by
merger to LaSalle Bank, N.A.. However its interesting to note that
Bank of America didn’t take over LaSalle Bank until October of 2007,
over 1 and 1/2 years later! (see paragraph 17 and attached exhibits).
Once the ‘pretender lender’ received our motion they immediately
called us and canceled the sale, and we haven’t heard back from them
since. We are waiting to have our evidentiary hearing for Fraud on
the Court.

Matis H. Abravanel, Esq.


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