From Matt Weidner’s Blog
“I seek comments and input from all interested parties”…
“Read on, reply and tear this apart people….let me know what you think”…
Below are excerpts from my memorandum which addresses the problems with Allonges in foreclosure actions. It is a work in progress, but my comprehensive research reveals that there are very real questions about whether an allonge (as opposed to an endorsement) can be used to evidence ownership of a note when a Plaintiff is trying to foreclose. It is published here in draft form…I seek comments and input from all interested parties. We are learning from depositions that the primary reason lenders are using allonges over endorsements is because they can prepare an allonge and affix it to the note later without having to get possession of the actual note…a practice in conflict with the very purpose of an endorsement/allonge. Read on, reply and tear this apart people….let me know what you think.
According to the only Florida appellate case which deals with these ancient instruments, “[a]n allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.” Booker v. Sarasota, Inc., 707 So. 2d 886 (Fla 1st DCA 1998). See also U.S. Bank National Association v. Weigand, 2009 WL 1623764 (Conn. Super. 2009); P&B Properties I, LLC v. Owens, 1996 WL 111128 (Del. Super. 1996). Furthermore, while “Florida’s Uniform Commercial Code does not specifically mention an allonge, [the Code] notes that ‘for purposes of determining whether a signature is made on an instrument, a paper affixed to the instrument is made part of the instrument.’ Fla. Stat. §673.2041(1) (1995).” Booker, 707 So. 2d at 886 (Fla. 1st DCA 1998).
LEGAL MEMORANDUM IN SUPPORT OF DEFENDANT’S ARGUMENT
I. Plaintiff’s Complaint Should Be Dismissed for Failure to be Prosecuted in the Name of the Real Party in Interest
- a. Legal Standards
Fla. R. Civ. P. 1.210(a) provides, in pertinent part, that “[e]very action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.”
Recently, the Second District held that Plaintiffs in foreclosure actions are required to establish, through admissible evidence, that it held the note and mortgage in question and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. BAC Funding v. Jean-Jacques, 2010 WL 476641 (Fla. 2d DCA 2010). Furthermore, the Second District held that whether such a Plaintiff does so through valid assignment, proof of purchase of the debt, or evidence of an effective transfer, they are nevertheless required to prove that it validly held the note and mortgage which it sought to foreclose. Id. In BAC Funding, the Second District ultimately ruled that an incomplete, unsigned and unauthenticated assignment of mortgage attached as an exhibit to the Plaintiff’s response to the Defendant’s motion to dismiss did not constitute admissible evidence establishing the Plaintiff’s standing to foreclose on the note and mortgage in question.
Additionally, the Bankruptcy Court of the Middle District of Florida recently denied a movant’s motion for relief from stay so the movant could foreclose on real property owned by a debtor, in part, because the movant did not establish that it was the real party in interest through a valid allonge. In re Canellas, 2010 WL 571808 (Bankr. M.D. Fla. Feb. 9, 2010). There, the movant accompanied its motion with a mortgage and note which were endorsed to someone other than itself. Some three months later, the movant filed an allonge with the Court which purportedly endorsed to it the mortgage and the note. However, the allonge was not notarized nor was it dated. The Court ultimately denied the movant’s motion and questioned the veracity of the allonge because, amongst other reasons, the allonge was not: (1) dated; or (2) notarized.
Here, the Plaintiff has failed to provide any admissible evidence that it is entitled to proceed in this action. The named lender according to the Plaintiff’s own Complaint is SAND CANYON CORPORATION F/K/A OPTION ONE MORTGAGE CORPORATION; however, Option One, the actual named lender on the Mortgage and Note, has had its corporate status suspended since 1990 and the Record is completely devoid of how Sand Canyon has come into existence or how it can legally hold a mortgage or note. Furthermore, the purported allonge which the Plaintiff alleges gives it the power to enforce the Mortgage and Note in question is not dated nor is it notarized. Option One’s suspended corporate status, the unclear and undefined existence of Sand Canyon, and the lack of a date or notarization on the purported allonge itself are firm grounds for the Court to doubt the veracity of this document and, as an extension, the Plaintiff’s status as the real party in interest.
- II. Plaintiff’s Complaint Should be Dismissed for Failure to State a Cause of Action Because the Purported Allonge was not Firmly Affixed to the Promissory Note
- a. Legal Standards
Fla. R. Civ. P. 1.140(b)(6) provides, in pertinent part, that “the following defenses may be made by motion at the option of the pleader…failure to state a cause of action.” In ruling on a motion to dismiss for failure to state a cause of action, the trial court must assume that all allegations in the complaint are true and decide whether the Plaintiff would be entitled to relief. Carmona v. McKinley, Ittersagen, Gunderson & Berntsson, P.A., 952 So.2d 1273 (Fla. 2d DCA 2007). Nevertheless, as indicated in the Standard of Review discussion, supra, exhibits attached to the Plaintiff’s complaint are part of the complaint, and where the allegations made in the complaint do not agree with the exhibits attached, the exhibits control.
There is no Florida case on point which provides guidance as to how an allonge must be physically attached to an instrument in order for it to become “firmly affixed” to same. Therefore, the Court may look to decisions of courts in other states for persuasive authority. To begin, two reasons have been cited for the “firmly affixed” rule: (1) to prevent fraud; and (2) to preserve a traceable chain of title. See Adams v. Madison Realty & Development, Inc., 853 F. 2d 163, 167 (3d Cir. 1988). A draft of the 1951 version of the UCC Article 3 included the comment that “[t]he indorsement must be written on the instrument itself or an allonge, which, as defined in Section _____, is a strip of paper so firmly pasted, stapled or otherwise affixed to the instrument as to become part of it.” ALI, Comments & Notes to Tentative Draft No. 1 – Article III 114 (1946), reprinted in 2 Elizabeth Slusser Kelly, Uniform Commercial Code Drafts 311, 424 (1984). More recently, however, courts have held that “stapling is the modern equivalent of gluing or pasting.” Lamson v. Commercial Cred. Corp., 187 Colo. 382 (Colo. 1975). See also Southwestern Resolution Corp. v. Watson, 964 S.W. 2d 262 (Texas 1997) (holding that an allonge stapled to the back of a promissory note is valid so long as there is no room on the note for endorsement). Regardless of the exact method of affixation, numerous cases have rejected endorsements made on separate sheets of paper loosely inserted in a folder with the instrument and not physically attached in any way. See Town of Freeport v. Ring, 1999 Me. 48 (Maine 1999); Adams v. Madison Realty & Development, Inc., 853 F. 2d 163 (3d Cir. 1988); Big Builders, Inc. v. Israel, 709 A. 2d 74 (D.C. 1988)
Here, the Plaintiff’s purported allonge, as found in the Court File, is in no way so firmly affixed to the Promissory Note as to give the Plaintiff the ability to raise a cause of action for foreclosure of a mortgage and note which is made out to someone other than itself. Specifically, when undersigned counsel examined the Court File, this purported allonge was not affixed to the Promissory Note nor, upon information and belief, is this purported allonge currently affixed to the Promissory Note. Because the purported allonge is not affixed to the Note, the twin aims of affixation, namely to prevent fraud and to preserve a traceable chain of title, have expressly not been met.
- III. Plaintiff’s Complaint Should be Dismissed for Failure to State a Cause of Action Because the Promissory Note Contained Room for Endorsement
- a. Legal Standards
There is also no Florida case law which provides guidance on how to decide “No-Space Tests”, or how to proceed when there is room on the instrument for an endorsement but an allonge is nevertheless attached instead. However, numerous jurisdictions permit allonges only where, because of multiple endorsements, no additional space for signatures remains on the negotiable instrument. See Shepherd Mall St. Bank v. Johnson, 603 P. 2d 1115, 1118 (Okla. 1979); Tallahassee Bank & Trust Company v. Raines, 187 S.E. 2d 320, 321 (Ga. App. 1972); James Talcott, Inc. v. Fred Ratowsky Assoc., Inc., 38 Pa. D. & C.2d 624 (Pa. Ct. of Common Pleas 1965). But see Crosby v. Roub, 16 Wis. 616, 626-27 (Wis. 1863) (allonge permitted even where space remains on note). Perhaps the seminal case which deals with the issue is Pribus v. Bush, 118 Cal. App. 3d 1003 (Cal. App. 1981), which reasoned that
the law merchant rule [which permits the use of allonges only when there is no room on the instrument itself]…was developed as a refinement of the basic rule that an indorsement must be on the instrument itself. This basic rule must have become impractical when strictly applied in certain multiple indorsement situations, due to the finite amount of space on any given instrument. The allonge, then, was apparently created to remedy the inconveniences of the basic rule, not as an alternative method of indorsement. Id at 1008. Emphasis added.
The Pribus court ultimately decided that the majority view is to follow the law merchant rule and only permit allonges when there is no physical space left on the instrument itself. Id.
- b. Argument
- Here, the allonge was improper because there is ample blank space on the Promissory Note filed with the Plaintiff’s Complaint to stamp an endorsement. This includes abundant space both below the Plaintiff’s alleged signature and on the back of the Note. Florida courts, in the absence of a Florida case directly on point, should follow the majority rule which only allows the use of an allonge when there is no room on the instrument itself for endorsement. Doing so preserves the law merchant rule, an ancient principal of commercial law. Because the allonge was improper, the Mortgage and the Note are endorsed to someone other than the Plaintiff, and therefore the Plaintiff does not have the ability to raise the cause of action for foreclosure.
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