Wow…great opinion out of the 5th DCA. In this case, U.S. Bank made the usual lost note count and claimed that Gee was in default. Gee, pro se, answered by denying all of U.S. Bank’s allegations (yeah!!!). The record showed that Gee executed a mortgage in favor of Advent Mortgage, LLC which in turn assigned the mortgage to Option One. American Home Servicing, Inc. (acting as successor in interest to Option One) then assigned the mortgage to U.S. Bank. U.S. Bank attached a copy of the mortgage and the assignments from Advent to Option One and from AHMSI to U.S. Bank.
U.S. Bank filed for summary judgment but failed to mention the lost note in their affidavit or MSJ. Instead, U.S. Bank stated in their MSJ that the original note, mortgage and assignment of mortgage would be filed on or before the MSJ hearing. The trial court granted the MSJ reestablishing the lost note and reforming the mortgage.
The 5th DCA opined that:
Ms. Gee first challenges U.S. Bank’s standing to bring the action. The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder’s representative. See BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010). Thus, “[t]he party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091, Florida Statutes (2010). State St. Bank & Trust Co. v. Lord, 851 So. 2d 790, 791 (Fla. 4th DCA 2003). If the note does not name the plaintiff as the payee, the note must bear an endorsement in favor of the plaintiff or a blank endorsement. Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010). Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note. See Verizzo v. Bank of N.Y., 28 So. 3d 976 (Fla. 2d DCA 2010); Stanley v. Wells Fargo Bank, 937 So. 2d 708 (Fla. 5th DCA 2006).
The 5th DCA went on further to state that although U.S. Bank filed a copy of the mortgage and the 2 assignments, they failed to file any document showing how AHMSI became the successor in interest to Option One.
The 5th DCA concluded by opining that:
Incredibly, U.S. Bank argues that “[i]t would be inequitable for [Ms. Gee] to avoid foreclosure based on the absence of an endorsement to [it].” But that argument flies in the face of well-established precedent requiring the party seeking foreclosure to present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action. See Verizzo, 28 So. 3d at 978; Philogene v. ABN Amro Mortg. Group Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006). When Ms. Gee denied that U.S. Bank had an interest in the Mortgage, ownership became an issue that U.S. Bank, as the plaintiff, was required to prove. See Lizio, 36 So. 3d at 929; Carapezza v. Pate, 143 So. 2d 346, 347 (Fla. 3d DCA 1962). As U.S. Bank failed to offer any proof of American Home’s authority to assign the Mortgage, we conclude that it failed to establish its standing to bring the foreclosure action as a matter of law.
I am very happy whenever I see any court apply black letter law as the 5th DCA did in this case. There is much more that the 5th DCA had to say on this matter (please read the opinion in its entirety – it’ a good one) but suffice to say that summary judgment was reversed and the matter remanded.
Full opinion below…
Ginnifer Gee v U.S. Bank National Association
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