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12-2406

12-2406

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Published by Foreclosure Fraud
4closureFraud.org
4closureFraud.org

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Categories:Types, Research
Published by: Foreclosure Fraud on Feb 28, 2013
Copyright:Attribution Non-commercial

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02/08/2014

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  JAMES K. LINDSEY,Appellant,v.WELLS FARGO BANK, N.A.,AS TRUSTEE FOR THECERTIFICATEHOLDERS OFSOUNDVIEW HOME LOAN TRUST 2007-OPT1, JULIE ANNMACDONALD UNKNOWN,SPOUSE OF JULIE ANNMACDONALD; COUNTYCREEK V111 HOMEOWNERSASSOCIATION, INC.;UNKNOWN PERSON(S) INPOSSESSION OF THESUBJECT PROPERTY,Appellees.IN THE DISTRICT COURT OF APPEALFIRST DISTRICT, STATE OF FLORIDANOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING ANDDISPOSITION THEREOF IF FILEDCASE NO. 1D12-2406 _____________________________/Opinion filed February 27, 2013.An appeal from the Circuit Court for Duval County.Michael R. Weatherby, Judge. Jay B. Watson and Joshua T. Kaleel of The Law Office of Jay B. Watson, P.A., Jacksonville, for Appellant.H. Michael Muniz of Kahane & Associates, P.A., Plantation, for Appellee WellsFargo Bank, N.A., As Trustee for the Certificateholders of Soundview Home Loan Trust 2007-OPT1.
 
2WETHERELL, J. James K. Lindsey appeals the final summary judgment entered in favor oWells Fargo Bank in this mortgage foreclosure case. We reverse and remand forfurther proceedings because Wells Fargo failed to establish its standing toforeclose and, likewise, failed to refute Lindsey’s affirmative defense contestingWells Fargo’s standing.In March 2007, Lindsey executed and delivered a promissory note to OptionOne Mortgage. The note was secured by a mortgage on property owned byLindsey in Duval County. Lindsey stopped making payments on the note in January 2009, and he was thereafter given due notice that he was in default on hisobligations under the note.On April 2, 2009, Wells Fargo filed a complaint to foreclose the mortgage inwhich it alleged that it “owns and holds the Note and Mortgage or is a personentitled to enforce the Note.” The copy of the note and mortgage attached to thecomplaint named Option One as the lender and mortgagee. Wells Fargosubsequently filed the original note with the court along with an Assignment of Mortgage dated April 10, 2009, showing the transfer of the mortgage from OptionOne to Wells Fargo effective March 26, 2009. The Assignment of Mortgage didnot purport to transfer the note, and the original note filed with the court did notinclude a special endorsement to Wells Fargo or a blank endorsement.
 
3Lindsey answered the complaint in due course. The answer specificallydenied the allegation that Wells Fargo owns and holds the note and mortgage. Theanswer also raised several affirmative defenses, including a claim that Wells Fargolacked standing because it did not own the note and mortgage when the foreclosurecomplaint was filed.
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In February 2012, Wells Fargo moved for summary judgment. In support of the motion, Wells Fargo filed affidavits attesting to Lindsey’s payment history, thedefault letter sent to Lindsey, the total amount owed on the note, and the attorney’sfees and costs incurred in this action. The affidavits did not attest to Wells Fargo’sownership of the note. Wells Fargo did file a “Certification of Compliance” formWells Fargo filed a motion to strike this defense as baseless,but the trial court denied the motion.
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We find no merit in Wells Fargo’s argument that Lindsey waived this defense bynot raising it in his motion to dismiss. First, lack of standing is not one of theissues listed in Florida Rule of Civil Procedure 1.140(b) that is waived if not raisedin a motion to dismiss; it is an affirmative defense that is waived if not raised in theanswer to the complaint. See Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249,253 (Fla. 1st DCA 2012); Phadael v. Deutsche Bank Trust Co., 83 So. 3d 893, 894(Fla. 4th DCA 2012). Second, Wells Fargo did not argue below that the standingissue was not properly before the court because the issue was not raised inLindsey’s motion to dismiss, but rather it argued that the issue was refuted by itssummary judgment evidence. Third, because Lindsey’s answer denied theallegation in the complaint that Wells Fargo owns and holds the note, Wells Fargohad the burden to establish that it was the owner and holder of the note in order toobtain summary judgment. See Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4thDCA 2010) (“Where the defendant denies that the party seeking foreclosure has anownership interest in the mortgage, the issue of ownership becomes an issue theplaintiff must prove.”) (citing Carapezza v. Pate, 143 So. 2d 346, 347 (Fla. 3dDCA 1962)).

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