Wrongful Foreclosure Lawsuit

A powerful post judgement remedy

This is a post about another one of our wins. Sometimes our wins are only part of the steps along the way to an ultimate victory but we still share them with our readers because they are still very important. This win is a victory over Wells Fargo Bank in a wrongful foreclosure case that was filed recently centering around a 19 year old foreclosure case and a final judgement of Foreclosure entered by the Miami Dade County circuit court in January 2017. We survived a threat to dismiss our current wrongful foreclosure case recently and the case is proceeding despite more than 8 years passing since final judgement. Stay tuned and read on!

Generally, a homeowner facing a wrongful foreclosure has several “potential remedies”, including setting aside the foreclosure sale, monetary compensation for statutory damages, and pursuing legal claims under consumer protection laws. 

Typically, when a homeowner defaults on their mortgage, the lender has the right to foreclose on their home. Nonetheless, the foreclosure may be considered unlawful if the mortgage lender or servicer of the loan failed to follow federal and state laws under the terms of the mortgage agreement.  A “wrongful foreclosure” may be the result of the bank’s internal servicing omissions, gross miscommunication, or even more egregious acts, akin to fraudulent practices and illegal actions taken by the lender in obtaining a final judgment of foreclosure against a homeowner. 

What is Wrongful Foreclosure?

Wrongful foreclosure happens when a mortgage lender or loan servicer tries to take your home in violating certain laws or the terms under a loan agreement. 

Wrongful foreclosure can happen if the lender:

·       Files a lawsuit against the homeowner without legal authority. i.e.; they are not the true owner of the loan obligation (“pretend lender”)

·       Skips required legal/statutory steps.

·       Makes serious mistakes, like the misapplication of payments, breaching a loan modification agreement, or in the utilizing of falsified evidence or documentation to complete its chain of title to foreclose. 

A mortgage lender, mortgage servicer, the holder of the promissory note, and/or a non judicial foreclosure, can all be held legally responsible and subject to punitive damages for filing a “wrongful foreclosure” if they don’t follow the legal process or make serious errors in the origination of the mortgage loan, and/or servicing of the loan account.

JUDICIAL VS. NON JUDICIAL FORECLOSURES

Each state has its own foreclosure laws. In some states, foreclosure is a legal process which means the lender must go through the court system to foreclose on the home. This is called a “judicial” foreclosure. In other states, the process happens without any court intervention. This is known as a “non judicial” foreclosure. Even in a “non judicial” foreclosure state, the lender must serve proper notices and follow specific procedures to take the home from the borrower.

WRONGFUL FORECLOSURE REMEDIES

In Florida, like many other states, homeowners may file a Complaint against the lender and servicer of the loan for “wrongful foreclosure” and other related civil claims (i.e. fraud, emotional distress, deceptive trade practices, statutory violations for recording false documents in the public records)  in procuring the unlawful foreclosure of the property. A claim for “wrongful foreclosure” under Florida law requires that the property in question be sold at a foreclosure sale, and the plaintiff was not in default. Jallali v. Christiana Trust (297 So.3d 580) . The elements of a claim for wrongful foreclosure are i) that a foreclosure sale occurred; and ii) the plaintiff was not in default. Jallali v. Christiana Trust (297 So.3d 580) .

Foreclosed properties are statutorily protected by the finality of mortgage foreclosure statute §702.036, Florida Statutes (2019). The statute explicitly provides “where title has passed to an innocent third-party buyer, a claim for wrongful foreclosure is converted into an action for money damages against the wrongfully foreclosing lender”. “Florida recognizes a cause of action for wrongful foreclosure.” Bank of N.Y. Mellon v. Reyes , 126 So. 3d 304, 309 n. 4 (Fla. 3d DCA 2013).

For many of our clients, presuming the material facts of the foreclosure supports an independent action, we may file an independent action for “wrongful foreclosure” in the county where the foreclosure was originally filed. The actions which form the basis of a potential lawsuit, centers around the institution and pursuit of a wrongful residential mortgage foreclosure and in most cases, “fraud” committed by the lender and its agents in filing the foreclosure.

In some cases, the basis of procuring the wrongful foreclosure is structured on the utilization of certain instruments alleging making up the chain of title willfully filed and recorded in the official records and in the recordation of the mortgage, including in some aspect’s where the origination of the mortgage loan was done through fraudulent means.

Calculating Damages

Once we’ve established that a “wrongful foreclosure” claim may be brought on behalf of the client, the next step would be calculating potential legal damages based on the filing of the unlawful foreclosure and deprivation of the homestead property.

This process can involve various types of compensation, including:

1.      Economic Damages: These are tangible financial losses incurred due to the wrongful foreclosure, including lost equity, relocation costs, and legal fees. Establishing these costs is essential in determining the extent of damages.

2.      Emotional Distress Damages: The psychological effects of losing a house may be profound. If the foreclosure process has negatively impacted the family’s dynamics and caused extreme worry or stress, the client may be eligible for compensation.

3.      Punitive Damages: In cases where the lender’s actions were particularly “egregious or fraudulent”, the homeowner may be eligible for recovering punitive damages against the bank. These damages aim to punish the lender and deter similar improper or predatory behavior in the future. 

4.      Interest on Damages: Depending on the laws of the specific state, there may also be entitlement to interest on economic damages from the date the wrongful foreclosure occurred until the date of judgment.

5.      Loss of Use: If the homeowner was forced to vacate their property, a claim for damages for loss of use may be available, reflecting the value of living in your home during the legal proceedings.

WRONGFUL FORECLOSURE CASE FILED IN MIAMI DADE COUNTY

On May 22, 2025, we filed a wrongful foreclosure complaint for a client in Miami Dade County, Florida, based on an unlawful foreclosure in procuring foreclosure of a homestead property. 

On its face, what makes this case so “unique” is that the Bank (Wells Fargo Bank, NA) filed its foreclosure case more than (19) years ago and the final judgment of foreclosure entered by the Miami Dade County circuit court in January 2017 is more than (8) years old, however these operative facts did not stop our pursuit of legitimate claims for the client.

Absent our legal expertise and foreclosure defense experience, most homeowners would feel their rights to pursue these claims against the bank for unlawful foreclosure were terminated. Nevertheless, this particular case definitively shows since the wrongful foreclosure sale of the home after years of protracted litigation with the bank, a claim for wrongful foreclosure was extremely “viable” to bring an independent action under Florida law, similar to the remedy in many other states.

Even with all the potential obstacles facing the homeowners for bringing forth “post judgment” claims we were able to articulate and formulate a formidable independent action protecting the homeowners’ rights resulting in the unlawful deprivation of their homestead property. 

Because the “Certificate of Title” of the foreclosed home was issued in February 2025, resulting in the judicial sale of the property, the Statute of Limitations (SOL) for filing a wrongful foreclosure claim in Florida was triggered. 

As such, our team preserved this claim for the homeowner as well as other claims against the bank and its agents in committing the fraud to file the foreclosure.

The totality of the wrongful foreclosure complaint we prepared for the client was approximately (61) pages, EXCLUDING the pertinent “Exhibits” to the subject May 2025 Complaint. These exhibits included the executed promissory note, mortgage, alleged endorsements to the note, relative transfers and/or assignments of mortgage/note filed and recorded in the official records by bank/lender in order to procure the foreclosure and unlawfully deprive the homeowner of their homestead property.

 Sometime thereafter, on July 31, 2025, the Defendant, Bank, Wells Fargo, NA, filed their Answer and Affirmative Defenses to the wrongful foreclosure. Not surprisingly,  the bank attorneys threatened to file a motion to dismiss to our Complaint, however, ultimately they never moved to dismiss the complaint based on the allegations of fraud committed in obtaining the final judgment on January 12, 2017. Such final judgment resulted in a November 6, 2024, Certificate of Sale and a Certificate of Title was issued on February 21, 2025.

The wrongful foreclosure litigation case is currently pending adjudication in Miami Dade County Circuit Court based on the allegations surrounding the bank perpetrating a fraud on the homeowners contained in the May 20, 2025, complaint.

             Previously, the foreclosure case instituted on February 3, 2006, centered on the wrongful misapplication of the homeowners’ mortgage payments resulting in an unlawful default/acceleration of the July 13., 2001 loan. As a result, we asserted numerous claims on behalf of our clients including filing for wrongful foreclosure, fraud, deceptive trade practices pursuant to §501.201, Florida Statutes, violations of Florida Statutes §817.535, 817.54, 817.545, intentional infliction of emotional distress and tortious Interference with contractual relations. 

In sum, due to the wrongful foreclosure of the Clients’ property it was unlawfully sold by the bank on October 15, 2024, and there was never a proper default under the loan account. IN FACT, THE EVIDENCE OFFERED BY THE BANK FAILED TO DEMONSTRATE THAT IT WAS THE PARTY WITH THE TRUE OWNERSHIP INTEREST IN THE NOTE AND MORTGAGE AND THAT THE ORIGINAL LENDER LEGALLY ASSIGNED THEIR RIGHTS UNDER THE NOTE TO SEEK A FORECLOSURE OF THE PROPERTY. 

Additionally, the independent action we filed focused on the utilization of an assignment of mortgage filed and recorded in the official records of Miami Dade County, Florida with false statements, and a series of fabricated endorsements to the note in obtaining a mortgage loan from the homeowners by fraudulent means. 

Richard A. Kalinoski, Jr. Esq. and Anthoney V. Varrone J.D.

Need our Help?

If you believe you have been victimized by a wrongful foreclosure call us today to discuss your case. We are a national firm helping homeowners receive justice in current or past foreclosure actions. Call us today at 844-583-5339

Posted in Corruption |