DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
July Term 2011
JP MORGAN CHASE BANK NATIONAL ASSOCIATION, not individually
but solely as Trustee for the holders of STRUCTURED ASSET
MORTGAGE INVESTMENTS II, INC., MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-ARS,
[ December 14, 2011 ]
Robert McLean appeals a final judgment of foreclosure entered in favor of JP Morgan Chase Bank (“Chase”) as Trustee for holders of certain mortgage pass-through certificates. We reverse, concluding that the trial court erred in entering summary judgment in Chase’s favor, where the record lacked any evidence that Chase had standing to foreclose at the time the lawsuit was filed.
On Ma y 11, 2009, Chase filed a two-count mortgage foreclosure action against the appellant, Robert McLean. The complaint generally alleged that McLean had defaulted under the note and mortgage, and that Chase was “the legal and/or equitable owner and holder of the Note and Mortgage and has the right to enforce the loan documents.” Count I of the complaint was entitled “Mortgage Foreclosure,” while Count II was entitled “Reestablishment of Lost Note.” Count II alleged that Chase “is not in possession of the subject Promissory Note and [Chase] cannot reasonably obtain possession of said Note because it is lost, stolen, or destroyed.” The copy of the mortgage attached to the complaint stated that the lender was American Brokers Conduit and that the mortgagee was MERS.
McLean filed a motion to dismiss, which the trial court denied on April 7, 2010. However, in the order denying McLean’s motion to dismiss, the trial court ordered Chase to file and serve within fifteen days “a copy of the assignment by which it obtained its rights and standing to proceed in this cause . . . .” In compliance with the trial court’s order, Chase filed a n Assignment of Mortgage, which reflected that MERS assigned the mortgage to Chase. However, the Assignment of Mortgage was signed by MERS representatives on May 14, 2009, three days after Chase filed the instant foreclosure complaint.
McLean filed a second motion to dismiss, arguing that Chase did not have standing to file its complaint because on the date of filing, May 11, 2009, Chase was not the owner of the Note and Mortgage. The trial court denied McLean’s second motion to dismiss. Subsequently, on May 13, 2010, McLean filed an Answer and Affirmative Defenses, raising various affirmative defenses, including the defense that Chase did not have standing to file its complaint.
Subsequently, Chase filed the original note and mortgage, as well as a reply to McLean’s affirmative defenses. The original note bore a special endorsement, stating: “Pay to the Order of JPMorgan Chase Bank, N.A., as Trustee Without Recourse By: American Brokers Conduit.” The endorsement to the note was not dated.
Chase filed a motion for summary judgment, as well as an affidavit in support of summary judgment. The affidavit, which was executed by a representative of American Home Mortgage Servicing after the lawsuit was filed, set forth the amounts due and owing under the loan. The affidavit further stated that Chase “is the holder and owner” of the mortgage originally given by Robert McLean to MERS. However, the affidavit did not specifically state when Chase became the owner of the note and mortgage, nor did the affidavit indicate that Chase was the owner of the note and mortgage before suit was filed. In fact, the affidavit failed to mention a n y endorsement of the note to Chase.
Following a hearing on Chase’s motion for summary judgment, the trial court entered a final judgment of foreclosure in favor of Chase. McLean appealed.
Full opinion below…