Foreclosure Case Briefs
Wane v. US Bank (Fla. 2d. DCA 2013)
Mortgage foreclosure -- Assignment of rents -- Trial court abused discretion in entering order requiring mortgagor's tenant to pay rents directly to mortgagee while foreclosure proceedings are pending where there was no competent evidence that mortgagee had made either a written demand for rents as required by statute or given written notice of default as required by mortgage -- Unauthenticated copy of default letter attached as exhibit to motion for assignment of rent was insufficient to establish that mortgagee had actually provided the required notice
Carriage Hills Condominium Inc v. JBH Roofing (Fla. 4th DCA 2013)
This is a contract dispute case filed by JBH Roofing, plaintiff/appellee against Carriage Hills Condominium Inc., defendant/appellee. JBH Roofing and Carriage Hills had a contract to repair the condominium roofs. The board of directors of the Carriage Hills terminated a repair contract they had with JBH Roofing. In July 2007, JBH filed suit. Ms. Foley, a corporate representative for Carriage Hills was deposed. Her testimony contradicted that of two affidavits offered in opposition to JBH motion for summary judgment. The trial court stroke those affidavits as sham and granted summary judgment in favor of JBH. The appeal court hold that before a trial judge may strike testimony offered by an entity on the basis that it repudiates or contradicts prior testimony given by a corporate representative, it must find that: (a) the prior deposition testimony was provided an a duly noticed Rule 1.310(b)(6) designee on a matter specified in the deposition notice; (2) that the testimony subject to the motion to strike directly contradicts or repudiates unequivocal prior testimony regarding matters of fact; (3) that there is no credible and reasonable explanation for the discrepancy; and (4) that striking the testimony is necessary in order to protect "the integrity of the judicial process,".
A deposition notice must request the party to designate one or more witnesses to testify on its behalf . . . about matters known or reasonably available to the organization. Fla. R. Civ. P. 1.310(b)(6).
The notice should designate with reasonable particularity the matter on which examination is requested. Carriage Hills was free to designate anyone it wished, so long as it adequately prepared the witness to speak as the "voice" of the corporation.
A corporation is "bound" by its Rule 1.310(b)(6) testimony, in the same sense that any individual deposed under Rule 1.310(b)(1) would be "bound" to his or her testimony. The testimony of a corporate representative is not akin to a judicial admission which conclusively establishes a fact.
The trial court's order entering summary final judgment in favor of JBH is reversed and this cause is remanded.
Bennet v. Deutsche Bank National Trust Company (Fla. 4th DCA 2013)
In this mortgage foreclosure case the defendants/appellants Bennetts appeal a final summary judgment entered in favor of plaintiff Deutsche Bank National Trust Company.
With the complaint, Deutsche Bank filed copies of the note with two allonges and the mortgage. The first allonge contained an undated endorsement from the original lender (H&R Block) to Option One Mortgage. The second allonge contained an undated endorsement in blank from Option One Mortgage. Both allonges were signed by the same individual, Elizabeth Causseaux. The Bennetts filed an amended answer and affirmative defenses, alleging two affirmative defenses: (1) that Elizabeth Causseaux was not authorized to sign the allonges on behalf of one or both of the separate entities; and (2) that the Bank was not in possession of the original note.
The court held that unlike in Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932 (Fla. 4th DCA 2010), there was an issue of authentication of the promissory note. The Bennetts put the validity of the signatures on both allonges at issue, thus creating a genuine issue of material fact. Genuine issue of material fact exists, summary judgment was improper.
Correa v. US Bank N.A. (Fla. 2nd DCA 2013)
This is a foreclosure action involving US Bank National Association as plaintiff and Tamara S. Correa as pro se defendant. Correa defaulted on the promissory note secured by a mortgage. The foreclosure complaint contained a lost note count.
Plaintiff US Bank seeks to foreclose on pro se Defendant Tamara S. Correa property located in Hillsborough County Florida. US Bank amended its complaint three times. The defendant did not file an answer to the third amended complaint. Both parties agreed to continue the trial at a later date. At the bench trial the lower tribunal court granted final judgement in favor of US Bank. Correa appeals from the final order.
(1) Did US Bank fail to meet its burden of proof of reestablish the lost note?
(2) Did US Bank fail to provide adequate trial notice to Correa?
(1) Yes. US Bank failed to meet its burden of proof of reestablish the lost note.
(2) No. US Bank did not fail to provide adequate trial notice to Correa.
RULE OF LAW OR LEGAL PRINCIPLE APPLIED
Section 673.3091(2) requires a person seeking enforcement of a lost, destroyed, or stolen instrument to "prove the terms of the instrument and the person's right to enforce the instrument" under section 673.3091(1).
Receipt of adequate trial notice can be waived if the party voluntarily agree to the new trial date.
First, the court reasoned that insufficiency of evidence can be raised on appeal whether or not the party raised the issue at trial, and plaintiff failed to prove the terms of the note as required by Fla. Stat. Section 673.3091(2). Under Fla. Stat. 673.3091(1)(b), U.S. Bank was required to prove that "[t]he loss of possession was not the result of a transfer by the person or a lawful seizure."
Second, the court reasoned that Rule 1.440(c) requirement is waived if parties agreed to new trial date.
NAFH National Bank v. Aristizabal (Fla. 4th DCA 2013)
We reverse an order setting aside a final foreclosure judgment pursuant to Florida Rule of Civil Procedure 1.540(b) because the motion was filed beyond the one-year time limit specified in the rule.
Comment: The loosing party in a suit has 1 year to file a motion to vacate the judgment. After one year, the court looses jurisdiction and the judgment cannot be reversed under Rule 1.540(b).
Woide v. Fannie Mae (Fla. 5th DCA 2013)
Appellants, Charles and Susannah Woide, timely appeal a non-final order denying their motion to quash service of process. They argue the summonses with which they were served were defective because neither contained the deputy clerk's signature or the circuit court's official seal as required by Florida Rule of Civil Procedure 1.070(a).
Lopez v. US Bank (Fla. 3d DCA 2013)
Ana Lopez (“Lopez”) appeals from a final judgment entered in favor of U.S. Bank, N.A., as Trustee for JP Morgan Chase Mortgage Trust (“U.S. Bank”). Because this case was tried before it was “at issue,” in contravention of Florida Rule of Civil Procedure 1.440, we reverse.
US Bank v. Boyer (Fla. 2nd DCA 2013)
US Bank, N.A., appeals an order that dismissed with prejudice its complaint for mortgage foreclosure because US Bank's nonresident cost bond was paid by US Bank's counsel. On appeal, US Bank argues that an attorney may file a nonresident cost bond on behalf of a client and that such practice does not violate the prohibition against an attorney's acting as a surety for his client. We agree and reverse the order of the circuit court.
Virgo v. National City Mortgage (Fla. 4th DCA 2013)
The doctrine of res judicata precludes consideration not only of issues that were raised and decided in a proceeding but also of issues that could have been raised and decided. Angela Virgo appeals a motion to vacate a final judgment of foreclosure that sought vacatur on grounds that her participation in a federal modification program rendered the foreclosure inequitable. Because Virgo failed to raise this claim in a prior motion to vacate, we affirm.
DiSalvo v. Suntrust Mortgage (Fla. 2nd DCA 2013)
Joe DiSalvo, III, and Elizabeth Ann DiSalvo challenge the entry of a summary judgment resulting in a final judgment of foreclosure. Because the mortgagee, SunTrust Mortgage, Inc., failed to present competent evidence that it provided the DiSalvos with the requisite notice and an opportunity to cure the default before the acceleration of the mortgage debt, we reverse.
Dixon v. Express Equity Lending Group (Fla. 4th DCA 2013)
A homeowner appeals a Final Judgment of Foreclosure. She argues the trial court erred in entering the final judgment because the special indorsement on the note refers to a non-party to the foreclosure proceedings.
We agree and reverse.
Lyttle v. BankUnited (Fla. 4th DCA 2013)
Because the original promissory note was not payable to Appellee or endorsed in blank and because Appellee did not comply with the alternative requirements as stated in Richards, issues of fact remain to be resolved precluding entry of summary judgment in Appellee’s favor.
Feltus v. US Bank (Fla. 2nd. DCA 2012)
The properly filed pleadings before the court when it heard U.S. Bank's motion for summary judgment were a complaint seeking to reestablish a lost note to which was attached a copy of a note made payable to Countrywide, N.A., Feltus's answer and affirmative defenses alleging that the note attached to the complaint contradicts the allegation of the complaint that U.S. Bank is the owner of the note, a motion for summary judgment alleging a lost note of which U.S. Bank is the owner, and an affidavit of indebtedness alleging that U.S. Bank was the owner and holder of the note described in the complaint. The endorsed note that U.S. Bank claimed was now in its possession was not properly before the court at the summary judgment hearing because U.S. Bank never properly amended its complaint.
Commentary:If indeed US Bank cannot establish that the allonge took effect prior to the date of the complaint, it did not have standing to bring suit.
Yisrael v. State (Fla. 2008)
Florida's business-records exception appears in section 90.803(6)(a), Florida Statutes (2004). To secure admissibility under this exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. See, e.g., Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999).
Additionally, the proponent is required to present this information in one of three formats. First, the proponent may take the traditional route, which requires that a records custodian take the stand and testify under oath to the predicate requirements. See § 90.803(6)(a), Fla. Stat. (2004). Second, the parties may stipulate to the admissibility of a document as a business record. See, e.g., Kelly v. State Farm Mut. Auto. Ins., 720 So.2d 1145, 1146 (Fla. 5th DCA 1998) (holding that the parties stipulated to the admissibility of medical records under the business-records exception); but see Gordon v. State, 787 So.2d 892, 894 (Fla. 4th DCA 2001) (holding that the State and defense counsel's stipulation regarding the defendant's release date was not sufficient to relieve the State of its burden to prove the defendant's release date by a preponderance of the evidence). Third and finally, since July 1, 2003, the proponent has been able to establish the business-records predicate through a certification or declaration that complies with sections 90.803(6)(c) and 90.902(11), Florida Statutes (2004).
Sas v. FEDERAL NATIONAL MORTGAGE ASSOCIATION (Fla. 2nd DCA 2013)
Andre Sas appeals the trial court's final judgment of foreclosure in favor of Federal National Mortgage Association (Fannie Mae). Although Sas raises several challenges to the final judgment, we find merit in only one of his arguments. Sas argues that Fannie Mae representative Jon Greenlee's oral testimony about the amount of the debt owed by Sas to Fannie Mae was hearsay and, therefore, legally insufficient to establish the amount of the debt because Fannie Mae never admitted into evidence any business records supporting Greenlee's testimony. We agree with this argument. Therefore, while we affirm the final judgment of foreclosure, we reverse and remand for further proceedings to determine the amount of the debt owed.
Saver v. JP Morgan Chase (Fla. 4th DCA 2013)
A plaintiff seeking foreclosure in a mortgage proceeding must establish that it had standing to foreclose at the time it filed suit. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). A foreclosure plaintiff has standing so long as it was the holder of the mortgage at the time it filed suit. Id. If the plaintiff’s name is not on the mortgage, it can establish standing by proving that the mortgage was either assigned or equitably transferred prior to the date it filed the complaint. Id. The following evidence is sufficient to establish standing in such a scenario: 1) a special endorsement on the note in favor of the plaintiff or a blank endorsement, 2) evidence of an assignment from the payee to the plaintiff, or 3) an affidavit of ownership.
Castillo v. Deutsche Bank (Fla. 3rd DCA 2012)
The appellant in this case challenges the appellee's standing to bring a foreclosure action against the appellant, arguing the appellee, a common-law trust, failed to comply with its pooling and servicing agreement when it took possession of the original note and mortgage and thus the trust cannot legally be in possession of the note and mortgage when it was obtained in violation of its trust documents. Because the appellant is neither a party to nor a third-party beneficiary of the trust, we find the appellant lacks standing to raise this issue and affirm the final judgment of foreclosure in favor of the appellee, as the holder of the original note and mortgage.See In re Walker, 466 B.R. 271, 280-81 1070*1070 (Bankr.E.D.Pa.2012); In re Almeida,417 B.R. 140, 149 (Bankr.D.Mass.2009); see also Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010).
Commentary: This case law stands for the proposition that a defendant cannot challenge the trust failure to abide by the Pooling & Servicing Agreement (PSA). There are case laws outside of Florida which allow a defendant to challenge a third party contract if the contract is used by a defendant instead of a plaintiff.
Stone v. BankUnited (Fla. 2nd DCA 2013)
Stone argues that the allonge indorsed in blank was invalid because it was not affixed to the original note, but this argument carries no weight in light of Fallman's testimony demonstrating that BankUnited acquired ownership of the note and mortgage through the purchase assumption agreement.
Commentary: A promissory note can be enforced in two ways: a) via an endorsement, or b) via an assignment, or other document showing equitable transfer of the note. In this case, the plaintiff used the second option while the defendant was focusing on the first option...big mistake. Defendant should have objected to the authenticity of the purchase and assumption agreement, the allonge and the note. This is a classic case of what not to do as defendant in foreclosure.
Zervas v. Wells Fargo Bank (Fla. 2nd DCA 2012)
Anastasios and Dina Zervas appeal a final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A., as trustee for the MLMI Trust Series 2005-FM1. We reverse because Wells Fargo did not establish that no answer which the Zervases might file could present a genuine issue of fact.
Comment: During the oral argument, the judge hinted to the fact that there was no record evidence of trustee being authorized by the trust to file the law suit.
Wells Fargo as Trustee v. Bohatka (Fla. 1st DCA 2013)
Wells Fargo Bank, N.A., appeals the dismissal with prejudice of its initial complaint seeking to foreclose the mortgage on property owned by William and Gail Bohatka. The bank claims the trial court erred by going beyond the four corners of its complaint. We agree and hold that, although dismissal of the initial complaint was proper, dismissal with prejudice was not. We further hold that the trial court’s sua sponte physical examination of the original of the promissory note at issue was improper and precluded the orderly process by which contested facts are adjudicated. We reverse.
Cromarty v. Wells Fargo (Fla. 4th DCA 2013)
The borrowers appeal from the circuit court’s final summary judgment of foreclosure in the bank’s favor. The borrowers argue, among other things, that the bank failed to negate their affirmative defense of lack of standing. Specifically, the borrowers argue that the note’s blank endorsement was undated and the bank’s evidence was insufficient to establish that it held the note and was entitled to enforce the note at the time it filed suit.
Kurian v. Wells Fargo (Fla. 4th DCA 2013)
Homeowners appeal a final summary judgment of foreclosure. They argue the trial court erred in entering summary judgment because the bank failed to refute two of their affirmative defenses. We agree and reverse.
Here, the bank failed to refute the homeowners’ affirmative defense of lack of notice of acceleration thirty days prior to the filing of the Complaint as required by the mortgage. The letter attached to the Complaint was dated only six days prior to the filing of the Complaint. While the bank argues that section 15 of the mortgage provides that notice is deemed to have been given when mailed by first class mail, the bank failed to prove that any notice was sent by first class mail. For these reasons, we reverse and remand for further proceedings.
Foerster v. Regent Bank (Fla. 4th DCA 2013)
Appellants Jeffrey and Taunya Foerster, defendants below, appeal a final summary judgment of foreclosure in favor of Appellee Regent Bank. We reverse the summary judgment because there remains a genuine issue of material fact regarding whether appellee complied with the condition precedent contained in the mortgage to provide pre-suit notice of acceleration. See Finnegan v. Deutsche Bank Nat'l Trust Co., 96 So. 3d 1093, 1094 (Fla. 4th DCA 2012) (reversing summary judgment as letters sent to appellant were not properly considered on motion for summary judgment and bank's affidavit did not address compliance with pre-suit notice of default).
US Bank N.A. v. Wanio-Moore (Fla. 5th DCA 2013)
U.S. Bank, N.A. (Bank) appeals the trial court’s order dismissing its mortgage foreclosure complaint, without leave to amend, for inadequate verification of the complaint. Determining that the verification provided by the Bank was legally sufficient, we reverse.
Green v. JP Morgan Chase (Fla. 5th DCA 2013)
In this mortgage foreclosure matter, Charles R. Green appeals the final judgment of foreclosure entered in favor of JPMorgan Chase Bank, N.A. (Bank). Determining that the trial court erred in denying Green’s motion to add a counterclaim and in granting the Bank’s motion for summary judgment, we reverse.
Deutsche Bank Trust Company v. Prevratil (Fla. 2nd DCA 2013)
We note that section 709.08(7)(b)(6) states that an attorney in fact may not "[e]xercise powers and authority granted to the principal as trustee or as court appointed fiduciary." The issue of whether this affects SPS's authority to exercise powers granted to Deutsche Bank as Indenture Trustee was not raised below and is not raised here.
According to Fla. Stat. 709.08(7)(b)(6) a servicer cannot be the agent of the trustee. In foreclosure involving trusts, all the evidence presented by the plaintiff come from the servicer. The status will nullify all the evidence coming from the servicer.
Judy v. MSMC VENTURE, LLC (Fla. 2nd DCA 2012)
Although MSMC argues that it provided the Judys with proper notice of default, the notices failed to specify the breach. Instead, the notices generally alleged that the Judys committed a breach. And failure to specify the default as required by the mortgage terms requires reversal because MSMC did not meet its burden in refuting the Judys' affirmative defense of insufficient notice of default. See generally Konsulian, 61 So. 3d at 1285 (reversing final summary judgment where the bank "did not refute Konsulian's defenses nor did it establish that Konsulian's defenses were legally insufficient"). Accordingly, we reverse and remand for further proceedings.
Walker v. FIFTH THIRD MORTGAGE COMPANY (Fla 5th DCA 2012)
David and Julianne Walker appeal a non-final order entered by the trial court denying their motion to quash service of process.Because the process server failed to strictly comply with section 48.031(5), Florida Statutes (2012), we reverse. The process server failed to include the date and time of service, or his identification number on any of the documents served on the Walkers.
Harvey Good v. Deutsche Bank Trust (Fla. 4th DCA 2012)
The 4th DCA ruled that RESPA claims can only be filed against the original "lender" not an assignee.
GMAC Mortgage v. Choengkroy (Fla. 4th DCA 2012)
A trial court may not sua sponte dismiss an action based on affirmative defenses not raised by proper pleadings.
Montes-Musira v. Aurora Loan Services (Fla. 4th DCA 2012)
Where the contents of an affidavit supporting a defendant’s contention of insufficiency of service would, if true, invalidate the purported service and nullify the court’s personal jurisdiction over the defendant, the trial court should hold an evidentiary hearing before deciding the issue.
Almond v. Bayview Loan Servicing LLC (Fla. 2nd DCA 2012)
Summary judgment was reversed because discovery was still pending.
In Brandauer v. Publix Super Markets, Inc., 657 So. 2d 932, 933 (Fla. 2d DCA 1995), this court advised against entering summary judgment when the opposing party has not completed discovery. Here, Almond informed the circuit court of the outstanding discovery in its memorandum in opposition to summary judgment. Almond argued that the deposition pertained to a question central to the validity of the suit, namely whether Bayview Loan was the owner of the note and mortgage on the date it filed suit. See Country Place Cmty. Ass'n, Inc. v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) (noting that party lacks standing to file foreclosure action if it does not own or possess note and mortgage when it files suit); see also Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2d DCA 2005) (stating that party's standing is determined at time suit is filed and cannot be acquired after the fact).
Acevedo v. BAC HOME LOANS SERVICING, LP (Fla. 4th DCA 2012)
Marcos Acevedo appeals from a final judgment of mortgage foreclosure. He argues two issues on appeal, and the appellee, BAC Home Loans Servicing, LP, concedes error with respect to both issues. Specifically, the appellee concedes that the trial court erred by (1) receiving live testimony at the summary judgment hearing; and (2) entering final judgment that did not purport to re-establish a lost note consistent with the evidence presented at the hearing. Appellee expressly denies the other arguments made by appellant. We accept the appellee's confession of error, vacate the final judgment and remand for further proceedings.
Raza v. DEUTSCHE BANK NATIONAL TRUST COMPANY (Fla. 2nd DCA 2012)
Ghanzanfar Raza appeals the trial court's order denying him attorney's fees following the involuntary dismissal, without prejudice, of Deutsche Bank's mortgage foreclosure lawsuit. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.110; Valcarcel v. Chase Bank USA NA, 54 So. 3d 989, 990 (Fla. 4th DCA 2010) ("An order dismissing an action without prejudice and without granting leave to amend is a final appealable order."). After careful consideration, we affirm.
Because we have no transcript of the fee hearing, the order on review is not facially erroneous, and Mr. Raza's proof failed to demonstrate a reasonable fee, we are compelled to affirm the trial court's order.
[The defense lawyer in this case failed to properly keep track of his hours while working on the case.]
Cutler v. US Bank National Association (Fla 2nd DCA 2012)
Thomas W. Cutler and Ann Cutler challenge the final summary judgment entered in favor of U.S. Bank National Association in U.S. Bank's mortgage foreclosure action against them. Because a genuine issue of material fact remains with regard to whether U.S. Bank was the proper holder of the note, we reverse and remand for further proceedings.
Mortgage was assigned to US Bank nearly two years after the filing of the complaint.
Dove v. McCormick (Fla. 5th DCA 1997)
"In summary,Dove's affirmative defense of rescission is time barred pursuant to section 1635(f). In addition, Dove is precluded from seeking the remedy of rescission under the guise of recoupment pursuant to Beach v. Great Western Bank, 692 So.2d 146 (Fla. 1997). Lastly, her claim for section 1640 damages was extinguished as a result of OTS's involuntary assignment of her mortgage to the RTC."
This caselaw supports the argument that if a party acquires a note from a failed institution via a government entity (i.e. FDIC, OCC), then the party is immune from any TILA damages claim, except that there is no immunity from homeowner rescission claim. This is an important caselaw used by banks to shield themselves against damages.
Rigby v. Wells Fargo Bank (Fla. 4th DCA 2012)
The Bank has not shown that it was holder of the note at the time the complaint was filed. The note containing a special endorsement in favor of Bank was not dated. The assignment of mortgage, dated May 22, 2008, indicates that Bank did not acquire the mortgage until the day after the complaint was filed.
Godshalk v. COUNTRYWIDE HOME LOANS SERVICING, LP (Fla. 5th DCA 2012)
The lesson of this case for defendants is that the Fifth District Court of Appeal demands strict compliance with rule 1.210(c) [Condition Precedent] and considers any violation to be fundamental. Extremely close attention should be given to the "specificity" and "particularity" requirements. As this case illustrates, non-compliance with the rule need not be raised below in order to succeed on appeal, so there will be no second chance to get this critical point of pleading right.
Martinec v. Early Bird International, Inc., (Fla: Dist. Court of Appeals, 4th Dist. 2012)
A consumer, relying on 15 U.S.C. § 1640(a)(1), is entitled to actual and statutory damages as a defense of recoupment or set-off to an action for collection of a debt even when such claims would be barred by TILA's three-year statute of limitations. Beach v. Great W. Bank, 670 So. 2d 986, 989 (Fla. 4th DCA 1996) (citing 15 U.S.C. § 1640(e)) aff'd, 692 So. 2d 146 (Fla. 1997), aff'd, sub nom. Beach v. Ocwen Federal Bank, 523 U.S. 410 (1998).
State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 832 (Fla. 1993).
Attorney's fees may be awarded by a court only when authorized by statute or by agreement of the parties.
WarnerLambert Co. v. Patrick (Fla. 4th DCA 1983).
A pleading filed in violation of rule 1.190(a) [rule governing amendment of complaint] is a nullity, and the controversy should be determined based on the properly filed pleadings. WarnerLambert Co. v. Patrick, 428 So. 2d 718 (Fla. 4th DCA 1983).
Booker v. Sarasota Inc (1st DCA 1998)
Because Sarasota, Inc. failed to establish its status as legal owner and holder of the note, or to establish the assignment from the FDIC, the trial court acted prematurely in basing its ruling on D'Oench.
Family Bank v. Able Realty of America (Fla. 4th DCA 1998)
Court in its discretion may refuse to grant prayer for foreclosure of mortgage for equitable reasons...mortgage foreclosure is an equitable action and thus equitable defenses are appropriate.
U.S. v. Federal National Mortgage Association (Fla. 4th DCA 1978)
Failure to comply with the notice requirement contained in the federal regulation is a valid defense to a mortgage foreclosure action.
Talarowski v. The Pennsylvania Railroad Company, 135 F. Supp. 503 (D. Del. 1955)
A motion to strike an affirmative defense will be denied if the defense is sufficient as a matter
of law, or if it fairly presents a question of law or fact which the court ought to hear.
Kidder & Co. v. Turner (Fla. 1958)
A motion to strike a defense should not be granted where the defense presents a bona fide question of fact.
Rodriquez v. State (Fla. 3d DCA 1983)
Fla. R. Civ. P. 1.140(b)
The lack of subject matter jurisdiction may properly be raised for the first time at the appellate stage.
WRJ DEVELOPMENT, INC. v. NORTH RING LIMITED, (Fla. 3rd DCA 2008)
The case law is well established that, in an action to enforce a promissory note, the documentary taxes must be paid in order for the note to be enforceable in court.
Morrison v. US. Bank N.A (Fla. 5th DCA 2011)
Evidence that notice of default was sent is prerequisite to summary judgment.
Sobel v. Mutual Development, Inc., 313 So. 2d 77 (Fla. App. 1st Dist. 1975)
A mortgage is a mere incident of, and ancillary to, the note or other obligation secured thereby, and an assignment of the pledge of the mortgage without an assignment of the pledge of the note or obligation secured thereby creates no right in the assignee or pledgee
Schneider v. Currey, 584 So.2d 86 (Fla. 2d DCA 1991)
A trial court, as well as this court, is also precluded from considering as fact unproven statements documented only by an attorney.
Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982)
"If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.")
DiSarrio v. Mills, 711 So.2d 1355 (Fla. 2d DCA 1998)
Unsworn argument by counsel simply “is not evidence.”
Tunnell v. Hicks, 574 So.2d 264, 266 (Fla. 1st DCA 1991)
A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive.
Sarkis Konsulian v. Busey Bank (Fla. 2d DCA 2011)
Because Busey did not prove that it met the conditions precedent to filing for foreclosure, it failed to meet its burden, and it is not entitled to judgment as a matter of law.
Moroni v. Household Fin. Corp. III, 903 So. 2d 311, 312 (Fla. 2d DCA 2005)
A summary judgment must not only establish that no genuine issues of material fact exist as to the parties’ claims, but it also must either factually refute the affirmative defenses or establish that they are legally insufficient.
Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2d. DCA 1992)
Crosby v. Paxson Elec. Co., 534 So. 2d 787 (Fla. 1st DCA 1988)
Topping v. Hotel George V, 268 So. 2d 388 (Fla. 2d DCA 1972)
Affidavit based on hearsay is not sufficient to support summary judgment.
CSX Transportation, Inc., v. Pasco County, 660 So. 2d 757 (Fla. 2nd DCA 1995)
We reverse because there are material issues of fact in dispute, making summary judgment inappropriate.
The initial burden is on the movant to demonstrate the nonexistence of any material fact. If genuine issues of fact exist, these issues may not be resolved in the summary proceeding. Mutual of Omaha Ins. Co. v. Eakins, 337 So 2d 418 (Fla. 2d DCA 1976)
CSX argues Balwin's affidavit does not comply with the requirement of Fla. R. Civ. P. 1.510(e), which requires that an affidavit be made on personal knowledge of the affiant and affirmatively show the affiant is competent to testify to the matters in the affidavit.
Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979)
In an adversary proceeding such as this the determination of an attorney's fee for the mortgagee based upon affidavits over objection of the mortgagor is improper. Evidence should be adduced so that the full range of cross examination will be afforded both parties. Demoso v. Demaso, 345 So. 2d 391 (Fla. 3rd DCA 1977); Thoni v. Thoni, 179 So 2d 420 (Fla. 3rd DCA 1965); Mullane v. Lorenz, 372 So. 2d 168 (Fla. 4th DCA 1979)
Soundcrafters, Inc., v. Laird, 467 So. 2d 480 (Fla. 5th DCA 1985)
We conclude that the trial court erred in permitting Laird's sole expert to testify by way of affidavit over Soundcrafters objection. Soundcrafters was deprived of any opportunity to cross-examine the expert as the the basis for his opinion...
Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786, 788 (Fla. 4th DCA 1995)
Before plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.
Poladian v. Johnson, 85 So.2d 140 (Fla. 1955);
Recordation of an invalid instrument affords no protection to claimants thereunder.
Vance v. Fields, 172 So. 2d 613, 614 (Fla. 1st DCA 1965)
An assignment of the mortgage without an assignment of the debt creates no right in the assignee.
Waite v. Wellington Boats, Inc. 459 So. 2d. 431 (Fla. 1st DCA 1984)
Torrey v. Leesburg Regional Medical Center, 731 So. 2d 748 (Fla. 5th DCA 1999)
The court may strike any pleading not signed by the party's attorney of record.
Khan v. Bank of America (Fla: Dist. Court of Appeals, 5th Dist. 2011)
While Bank of America alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the amended complaint contradicts that allegation. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.
David J. Sandoro v. HSBC Bank USA N.A (Fla. 2nd DCA 2011)
Here, the record reflected genuine issues of material fact regarding the purported assignment of mortgage and whether Mr. Sandoro had been provided with a notice of acceleration. Therefore, the trial court erred in granting HSBC Bank's motion for summary judgment and we reverse and remand for further proceedings.
JAMES KWONG and LIFEN LI KWONG, v. COUNTRYWIDE HOME LOANS SERVICING, L.P. et al., 36 Fla. L. Weekly D251a (Fla. 4th DCA Feb. 2, 2011)
In this case, the defendants moved to quash service of process because the process servicer failed to note the time of service on the papers served. The trial court denied the motion. The appellate court reversed, holding that "strict compliance with statutory requirements of service is mandated."
Francel v. Gries Investment Fund, LLC (Case No. 2D09-4591)
Francel argues, and we agree, that the trial court erred in granting summary judgment because Gries never factually refuted these affirmative defenses or established that they were legally insufficient. Consequently, Gries did not establish its entitlement to summary judgment. See, e.g., Morroni v. Household Fin. Corp., III, 903 So. 2d 311 (Fla. 2d DCA 2005) (explaining that a party seeking summary judgment must either factually refute the other party's affirmative defenses or establish that they are legally insufficient); Manassas Inv., Inc. v. O'Hanrahan, 817 So. 2d 1080 (Fla. 2d DCA 2002) (holding that in order for the movant to prevail on a summary judgment motion, the movant must either factually refute the affirmative defenses or establish that they are legally insufficient). In evaluating the sufficiency of Francel's affirmative defenses, the trial court should have considered Francel's affidavit and accompanying documents which alleged facts in support of his affirmative defenses. See Fla. R. Civ. P. 1.510(c).
Accordingly, we reverse the trial court's order of summary judgment and remand for further proceedings.
Household Finance Corporation v. Henry Fred Mitchell (1D10-0304)
The trial court erred in denying HFC’s motion to vacate the default. We conclude that HFC raised at least one meritorious defense in its answer and affirmative defenses.
A party moving to set aside a default must show that the failure to file a timely responsive pleading was due to excusable neglect, that there is a meritorious defense to the claim, and that the request for relief from default was made with reasonable diligence after it was discovered. See Hunt Exterminating Co., Inc. v. Crum, 598 So. 2d 113 (Fla. 2d DCA 1992); Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995); Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304 (Fla. 4th DCA 2010). The court must deny the motion if any one of the three elements is not established.
Ballinger v. Bay Gulf Credit Union (2D09-4561)
The Second District reversed a final judgment based upon the contents of the verified complaint. Interestingly, the court found "no error in two of the issues raised by" the appellant. However, concluded that "we must reverse because the verified complaint was insufficiently pleaded and, therefore, final summary judgment was improvidently entered."
Palacio v. Alaska Seaboard Partners Limited Partnership (1D10-2690)
First District reversed the trial court's order denying a motion to set aside judgment and remanded the case so that the trial court can conduct an evidentiary hearing.
Insurance Company of North America v. Noya, 398 So. 2d 836 (Fla. 5th DCA 1981)
Gosman v. Luzinski, 937 So. 2d 293 (Fla. 4th DCA 2006)
Plaintiff failed to timely apply for any protective order and thus waived all objections, exepting any claims of priviledge [in discovery].
Plaintiff has failed to file any priviledge log. Thus, Plaintiff has waived any and all objections to the discovery propounded by Defendant.
Alvarez v. COOPER TIRE & RUBBER COMPANY, Fla: Dist. Court of Appeals, 4th Dist. 2010
The Fourth District reversed the trial court's judgment entered after a jury verdict and remanded for a new trial because the plaintiff was not allowed to conduct sufficient discovery
Gables Club Marina, LLC v. Gables Condominium and Club Ass'n, Inc, 948 So. 2d 21,24 (Fla. 3d DCA 2006)
Trial court did not abuse its discretion by setting aside default judgment in part based on allegations that defaulting party relied on representation that lawsuit would not proceed while settlement discussions remained viable and where Association responded within five days to motion for default).
Seal v. Brown, 801 So. 2d 993, 994-95 (Fla. 1st DCA 2001)
Jorge Palacia v. Citifinancial Equity Services (Fla. 1st DCA 2010)
Schuman v. International Consumer Corporation (4D09-951)
"A trial court is required to conduct an evidentiary hearing before entering an order denying a motion to set aside a judgment."
"Furthermore, if a moving party's allegations raise a colorable entitlement to relief, a formal evidentiary hearing and appropriate discovery is required."
Steven Ray Opella v. Bayview Loan Servicing LLC
M.L. Builders, Inc. v. Reserve Developers LLP (FLA. 4th DCA 2000)
Kenney v. Richmond (Fla 4th DCA 1987)
"A judgment entered without service of process is void and will be set aside and stricken from the record on motion at any time."
Servedio v. US Bank N.A (4D10-1898)
The summary judgment order should be reversed because the lender did not file “a copy of the original note and mortgage prior to the entry of judgment the original mortgage note with the trial court.”
Even if the trial court considered the note and mortgage at the hearing, the documents were not authenticated, filed, and served more than twenty days before the hearing as required by Rules 1.510(c) and 1.510(e). Appellee’s failure to abide by these rules also necessitates reversing the order granting summary judgment. Verizzo, 28 So. 3d at 977-78; Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989).
State Street Bank and Trust v. Lord, 851 So. 2d 790 (Fla 4d DCA 2003)
To maintain a mortgage foreclosure, the plaintiff must either present the original promissory note or give a satisfactory explanation for its failure to do so. § 90.953(1), Fla. Stat. (2002); W.H. Downing v. First Nat'l Bank of Lake City, 81 So.2d 486 (Fla.1955); Nat'l Loan Investors, L.P. v. Joymar Assocs., 767 So.2d 549, 551 (Fla. 3d DCA 2000).
Johnston v. Hudlett, 32 So. 3d 700 (Fla 4d DCA 2010)
Moreover, in the case of original mortgages and promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. See Perry v. Fairbanks Capital Corp., 888 So.2d 725, 726 (Fla. 5th DCA 2004). The judgment cancels the note. The clerk cannot return these instruments to the parties.
Deseret Ranches of Florida v. Bowman, 340 So.2d 1232 (Fla 4d DCA 1976)
Only an entire action may be voluntarily dismissed under Fla.R.Civ.P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all causes of action.
This means that plaintiff cannot drop lost note count from the complaint.
Mizrahi v. Mizrahi, 867 So. 2d 1211 (Fla. 3d DCA 2004)
It is generally a due process violation for a trial court to determine matters not noticed for hearing.
Fuchs v. Fuchs, 840 So. 2d 449 (Fla. 4th DCA 2003):Finding trial court erred in ruling on matters concerning child custody and child support during hearing noticed for husband’s motion for temporary financial relief;
Fickle v. Adkins, 394 So. 2d 461 (Fla. 3d DCA 1981):Finding court violated appellant’s due process rights when it disposed of all pending matters, including matters that were not noticed for hearing.
Bobby E. Williams vs. Cal Henderson, Sheriff of Hillsborough County, Florida, 779 So.2d 450(2000)
Since the trial court granted the motion for summary judgment and entered its final judgment of forfeiture based solely on the detective's incompetent and insufficient affidavit, we must conclude that the trial court entered summary judgment without the benefit of any facts. Accordingly, summary judgment was improper.
Restatement (3d) of Property (Mortgages) § 5.4
[a] mortgage may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation that the mortgage secures.
Kelley v. Upshaw, 39 Cal. 2d 179, 192, 246 P.2d 23 (1952)
Assigning only the deed without a transfer of the promissory note is completely ineffective.
In re Leisure Time Sports, Inc. 194 B.R. 859, 861 (9th Cir. 1996)
"[a] security interest cannot exist, much less be transferred, independent from the obligation which it secures" and that, "[i]f the debt is not transferred, neither is the security interest".
Carpenter v. Longan, 83 U.S. 271, 274, 21 L. Ed. 313 (1872)
The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.
Mitchell Brothers, Inc. v. Westfield Insurance Company, Fla: Dist. Court of Appeal, 1st Dist. 2009
The affidavit and attached list of payments is insufficient to award summary judgment as they constitute
Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998)
The trial court, when considering a motion for summary judgment in an action on a promissory note, was not permitted to simply assume that the plaintiff was the holder of the note in the absence of record evidence of such.
BAC Funding Consortium Inc. ISAOA/ATIMA v. U.S Bank NA, (Fla. 2nd DCA 2010)
Final Summary Judgement is improper plaintiff failed to establish its status as legal owner and holder of the note and mortgage.
Mortgage Electronic Registration v. Azize, 965 So. 2d 151 - Fla: Dist. Court of Appeal, 2nd Dist. 2007
PHILOGENE v. ABN AMRO MORTG. GROUP INC., 948 So. 2d 45 - Fla: Dist. Court of Appeal, 4th Dist.
The holder of a note has standing to seek enforcement of the note.
Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399 - Fla: Dist. Court of Appeal, 2nd Dist. 2000
When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.
Settecasi v. Board of Public Instruction, 156 So. 2d 652 - Fla: Dist. Court of Appeal, 2nd Dist. 1963
When a plaintiff moves for summary judgment before the defendant has filed an answer, "the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact."
Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000)
When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint
Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008)
Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.
Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971)
When there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable.
Bernstein v. New Beginnings Trustee, LLC, 988 So.2d 90 (Fla. 4th DCA 2008)
“‘[T]he burden is upon the party moving for summary judgment to show conclusively the
complete absence of any genuine issue of material fact.’ Fini, 936 So. 2d at 54 (quoting
Albelo v. S. Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996)). A trial court may enter
summary judgment only when there are no genuine issues of material fact conclusively
shown from the record and the movant is entitled to judgment as a matter of law. See Albelo,
Manning v Clark, 71 So.2d 507 (Fla.1954), Williams v. City of Lake City, 62 So.2d 732 (Fla.1953)
Courts sparingly grant summary judgment to avoid infringing on the constitutional right to
trial. If fact issues exist and the slightest doubt remains, the Court must resolve the doubt in
favor of the non-movant and deny summary judgment.
Carpenter v. Longan, 83 US 271 - Supreme Court 1873
The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.
Babe Elias Builders, Inc. v. Pernick,765 So. 2d 119, 119 (Fla. 3d DCA 2000)
“[A] trial court has the inherent power to impose sanctions on a party who destroys evidence or perpetrates a fraud on the court.” Babe Elias Builders, Inc. v. Pernick, 765 So. 2d 119, 119 (Fla. 3d DCA 2000); see also Amato v. Intindola, 854 So. 2d 812, 815 (Fla. 4th DCA 2003); and Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998).
McKnight v. Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005)
“The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.”
Savino v. Fla. Drive In Theatre Mgmt., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997)
Where a trial court determines that a party’s conduct “amounted to a scheme calculated to interfere with the court’s ability to impartially adjudicate [the] claim,” a sanction as severe as dismissal or default judgment is appropriate. ;
see also Bob Montgomery Real Estate v. Djokic, 858 So. 2d 371, 375 (Fla. 4th DCA 2003) (“dismissal is properly utilized where a party knowingly misleads the other party, thereby interfering with the other side’s ability to defend (or prosecute) by a knowing deception intended to prevent the essential discovery.”).