IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

SECOND DISTRICT

DAVID VERIZZO,
Appellant

vs. Case No: 2D08-4647

THE BANK OF NEW YORK, AS SUCCESSOR

TRUSTEE UNDER NOVASTAR MORTGAGE
FUNDING TRUST, SERIES 2006-3,
Appellee
__________________________________________/

__________________________________________________________________

APPELLANT’S INITIAL BRIEF

__________________________________________________________________
__________________________________________________________________

APPEAL FROM THE CIRCUIT COURT OF THE 12TH JUDICIAL CIRCUIT,

CIVIL DIVISION, IN AND FOR SARASOTA COUNTY, FLORIDA
Lower Court Case No. 2008 CA 006618 NC
__________________________________________________________________

David Verizzo
Appellant, pro se
5657 Forester Pond Avenue
Sarasota, FL 34243
941-822-2884
Fax: 866-877-9600
 TABLE OF CONTENTS

TABLE OF CITATIONS AND AUTHORITIES .................................................. iv

PRELIMINARY STATEMENT ............................................................................. 1

STATEMENT OF JURISDICTION …………………………………………...... 1

STANDARD OF REVIEW, REQUIRED ANALYSIS .………………….......….. 1

STATEMENT OF THE CASE AND FACTS ........................................................ 3

SUMMARY OF ARGUMENT ............................................................................... 7

ARGUMENT ................................................................................................... 11-29

I. THE TRIAL COURT ERRED IN ENTERING SUMMARY

JUDGMENT IN THAT SUMMARY JUDGMENT EVIDENCE CRITICAL TO

THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT TIMELY

SERVED AND FILED………………………………………………………...… 11

II. THE TRIAL COURT ERRED IN ENTERING SUMMARY

JUDGMENT IN THAT THE BANK LACKED STANDING AS IT WAS NOT

THE OWNER AND HOLDER OF THE NOTE ………………………………. 14

III. THE TRIAL COURT ERRED IN ENTERING SUMMARY

JUDGMENT IN THAT THE MOTION FOR SUMMARY JUDGMENT WAS

PREMATURE …………………………………………………………………... 21

ii
 IV. THE TRIAL COURT ERRED IN ENTERING SUMMARY

JUDGMENT IN THAT APPELLANT’S DEFENSES HAD NOT BEEN

NEGATED …………………………………………………………………….... 22

a. THE COMPLAINT FAILED TO STATE A CAUSE OF ACTION

…………………………………………………………………………………… 23

b. THE MOTION FOR SUMMARY JUDGMENT IS LEGALLY

INSUFFICENT ……………………………………………………………..…… 23

c. NO PROOF OF OCCURRENCE OF CONDITIONS ………..… 28

CONCLUSION ......................................................................................................29

CERTIFICATE OF SERVICE .............................................................................. 30

CERTIFICATE OF FONT COMPLIANCE ..........................................................31

iii
 TABLE OF CITATIONS AND AUTHORITIES

Cases

Bank of New York v. Williams, 979 So.2d 347 (Fla. 1st DCA 2008,) ............. 17, 18

Carnes v. Fender, 936 So.2d 11 (Fla. 4th DCA 2006) ............................................. 3

Collins v. Brigman, 428 So.2d 373, 374 (Fla. 5th DCA 1983) ............................... 2

Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla. 1956.) ...................................... 3

Cook v. Navy Point, Inc., 88 So.2d 532 (Fla. 1956) ..............................................13

Fladell v. Palm Beach County Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000)

..........................................................................................................................17

Greene v. Lifestyle Builders, 5D06-4316 (Fla. 5th DCA 5-30-2008) ....................22

Greene v. Lifestyle Builders, 985 So.2d 588 (Fla. 5th DCA 2008)........................22

Hamilton v. Bank of Palm Beach & Trust Co., 348 So.2d 1190, 1191 (Fla. 4th

DCA 1977) ......................................................................................................... 2

Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991,) .............................. 2

Huntington Nat'l Bank v. Merrill Lynch Credit Corp., 779 So. 2d 396, 398 (Fla. 2d

DCA 2000) ......................................................................................................... 2

In Re Foreclosure Cases (N.D. Ohio 10-31-2007) ........................................... 18, 19

Johns Supply Co. v. McNeeley, 169 So. 732, 734 (Fla. 1936) ..............................19

Knowles v. JPMorgan Chase Bank, N.A., 994 So.2d 1218 (Fla. 2d DCA 2007.) ... 3

iv
Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 615 So.2d 207, 208

(Fla. 4th DCA 1993) ........................................................................................... 2

Scott v. Taylor, 58 So. 30 (Fla. 1912) ...................................................................19

Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000) ...............................................................................................................1, 2

Statutes

Florida Statute Section 57.105 ..............................................................................17

Rules

Fla. R. App. P. 9.030(b)(1)(A) ............................................................................... 1

Fla. R. App. P. 9.110(a)(1) ..................................................................................... 1

Fla. R. C. P. 1.510 ................................................................................. 8, 12, 13, 24

Fla. R. C. P. 1.510(e) ............................................................................................27

v
 PRELIMINARY STATEMENT

The Appellant, David Verizzo, the defendant below, shall be referred to

throughout as “Appellant" or “Verizzo.” The Appellee, The Bank of New York, as

Successor Trustee Under Novastar Mortgage Funding Trust, Series 2006-3, the

plaintiff below, shall be referred to as “Appellee" or “Bank of New York" or

simply “the Bank.”

References to the Appendix to this Initial Brief and references to the Record

on Appeal, respectively, shall be cited as "(A.____ , R. ____ )”

All emphasis is supplied unless otherwise indicated.

STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal from the lower court's final summary

judgment pursuant to Fla. R. App. P. 9.030(b)(1)(A) and Fla. R. App. P.

9.110(a)(1).

STANDARD OF REVIEW, REQUIRED ANALYSIS

“The standard of review for an order granting a motion for summary

judgment is de novo and requires a two-pronged analysis. Volusia County v.

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Summary

judgment is proper only if (1) no genuine issue of material fact exists, viewing

every possible inference in favor of the party against whom summary judgment has

1
been entered, Huntington Nat'l Bank v. Merrill Lynch Credit Corp., 779 So. 2d

396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to a judgment as

a matter of law, Aberdeen at Ormond Beach, 760 So. 2d at 130. "If the record

reflects the existence of any genuine issue of material fact or the possibility of any

issue, or if the record raises even the slightest doubt that an issue might exist,

summary judgment is improper." Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d

DCA 1991). “ (Quoted from this Court’s opinion in Knowles v. JPMorgan Chase

Bank, N.A., 994 So.2d 1218 (Fla. 2d DCA 2007).

The burden of proof as between the parties below, important in

determining a non-moving party’s obligation to respond and therefore relevant to

the standard of review and required analysis, has been stated as follows. “[t]he

party moving for summary judgment has the initial burden of demonstrating the

nonexistence of material issues of fact. Lenhal Realty, Inc. v. Transamerica

Commercial Fin. Corp., 615 So.2d 207, 208 (Fla. 4th DCA 1993). Only after "the

movant has tendered competent evidence in support of its motion does the burden

shift and fall on the other party to come forward with opposing evidence to show

that a question of material fact exists." Id.; Hamilton v. Bank of Palm Beach &

Trust Co., 348 So.2d 1190, 1191 (Fla. 4th DCA 1977). To avoid summary

judgment, a litigant does not have to provide clear and convincing evidence that

issues of material fact exist. Collins v. Brigman, 428 So.2d 373, 374 (Fla. 5th DCA

2
1983). For purposes of a motion for summary judgment, "it should be assumed

that every fact as to which the party moved against has any appreciable evidence

may at a trial be established to the satisfaction of a jury." Connolly v. Sebeco, Inc.,

89 So.2d 482, 484 (Fla. 1956.)” Carnes v. Fender, 936 So.2d 11 (Fla. 4th DCA

2006), (emphasis supplied by the court.)

STATEMENT OF THE CASE AND FACTS

This is an appeal from a summary Final Judgment of Mortgage Foreclosure.

(A. R. )

Appellee filed a foreclosure action in Sarasota County against Appellant,

seeking foreclosure of Appellant’s sole home and residence, and seeking to re-

establish an allegedly lost promissory note. The case was filed on April 25, 2008

and Appellant was thereafter properly served. The Complaint as served had

attached a copy of the mortgage, an adjustable rate mortgage rider, and a planned

unit development rider.1 (A. 1-27, R. 1-27 ) Appellant, pro se, timely served and

filed a motion for enlargement of time in which to file a response. (A. 28, R. 31)

Thereafter, counsel for Bank of New York contacted Verizzo telephonically to

1
The complaint as filed also had attached to it a Prepayment Rider, (R. 28-29) a
discrepancy noted here but not complained of.

3
inquire as to whether she should set Verizzo’s motion for hearing, or if he would

stipulate to the entry of an “agreed order” providing 20 days from the date of the

order in which to respond to the Complaint. Verizzo stipulated to the entry of such

an order. Counsel for Bank of New York prepared the documentation, and

provided it to Verizzo, who signed and returned it to the Bank’s counsel, per her

request. That agreed order was never entered, although the docket reflects that the

unsigned order was filed along with a Notice of Filing (A. 29-30, R. 32-33).

Accordingly, by agreement between the parties, Appelee’s response to the

complaint was not yet due at the time of the Bank’s motion for summary judgment

and notice of hearing thereon.

Next, Appellee on July 25, 2008 served an affidavit of indebtedness (A. 31-

34, R. 39-50)2 3and shortly thereafter on August 5, 2008 moved for a clerk’s

default (A. 45-48, R. 59-60) and for summary final judgment. (A. 37-44, R. 51-58)

The notice of hearing for the motion for summary judgment, stated that the hearing

was to be on “motion for summary final judgment of foreclosure and to re-

2
Appellant did not receive this most critical affidavit, despite the certificate of
service. Appellant learned of the affidavit of indebtedness only during the
preparation of this brief. Accordingly, Appellant presented argument to the trial
court, in his memorandum in opposition to motion for summary judgment, (A. 91-
121, R. 118-148) that there was no proof of default or indebtedness.
3
The Record reflects that multiple identical copies of the Affidavit of Indebtedness
were filed.

4
establish lost loan documents.” (A. 35, R. 61) The hearing was noticed for

August 29, 2008 at 10:30 a.m.

However, thereafter, on August 18, 2008, only eleven days prior to the

hearing and nine days after the deadline for serving summary judgment evidence,

the Bank served by mail another Notice of Filing for an original promissory note,

and original recorded mortgage, and an original recorded assignment of mortgage -

additional summary judgment evidence that had not been previously served or

filed. (A. 49-81, R. 74-107) Most cogently, this late service included the original

of the promissory note, of which not even a copy had been served and filed, and

also included the original mortgage. The original promissory note, in apparent

contravention of Fla. R. C. P. 1.080(d)4, was only filed in open court the day of

hearing. (See stamp A. 49, R. 74).

The documents served with that Notice of Filing included the following:

a. Adjustable Rate Note (Original of the Promissory Note) (A. 51-

55, R. 75-79)

b. Prepayment Addendum to Note (A. 56-57, R. 80-81)

c. Original of the Recorded Mortgage (with three riders) (A. 58-80,

R. 82-106)

4
*** (d) Filing. All original papers shall be filed with the court either
before service or immediately thereafter. ***

5
 d. Original of the Recorded Assignment of Mortgage (A. 81, R.

107)

Prior to this late filing, not even a copy of the promissory note had been

served or filed. The note shows (at A. 55, R. 80) that it had been endorsed to

JPMorgan Chase Bank, as Trustee, not a party to this action.

Immediately prior to the hearing on the Bank’s Motion for Summary

Judgment, Appellant served and filed 1) a Motion to Re-Set Hearing on Summary

Final Judgment, or in the alternative, to Strike Certain Service and Filings,5 (A. 82-

84, R. 109-111) and 2) a Motion to Dismiss the Complaint, (A. 85-87, R. 112-114)

3) an Answer and Affirmative Defenses (subject to his Motion to Dismiss,) (A. 88-

90, R. 115-117) and 4) a Memorandum in Opposition to the Motion for Summary

Final Judgment. (A. 91-121, R. 118-148) The Court did not rule on Appellant’s

Motions, although copies were presented to the court for its consideration at

hearing, and the Court was advised of the documents having been previously filed.6

Likewise, the Court did not rule on the Bank’s Motion for Default.7

5
This motion sought to strike the summary judgment evidence served and filed
beyond the cut-off date, specifically, the original promissory note and mortgage
(and riders) and the assignment of mortgage.
6
Appellant retained a court reporter for the hearing, but the hearing has not been
transcribed.
7
If either the clerk or, more particularly the trial court, had entered a default, which
neither did, it is suggested that Appellant would have a different, and higher,
burden on this appeal.

6
 The Court granted the Bank’s Motion for Summary Final Judgment of

Foreclosure, entered Final Judgment against Verizzo, and set a sale date for

Verizzo’s home. (A. 122-125, R. 69-73)

Verizzo timely filed a Notice of Appeal, (A. 126, R. 152-157) and this

appeal followed.

SUMMARY OF ARGUMENT

I.

The trial court erred in entering summary judgment in that summary

judgment evidence critical to supporting the Bank’s motion for summary judgment

was served and filed late, or not filed at all.

Applicable rule requires summary judgment evidence on which the movant

relies to be served with the motion (if not previously filed) and be specifically

identified in the motion. Here, the original promissory note, absolutely critical to

the underlying foreclosure,8 and the original mortgage, were served only eleven

days prior to the hearing and nine days after the deadline for serving summary

judgment evidence, rather than the required twenty days. The documents

themselves were not filed until the hearing. Not even a copy of the note had been

8
Prior to this, not even a copy of the note had been served.

7
previously served or filed.9 This late service subjected Verizzo to unfair surprise,

an element which the Fla. R. C. P. 1.510 time requirement is designed to protect

against.

II.

The trial court erred in entering summary judgment in that the Bank lacked

standing as it was not the owner and holder of the note.

The documents timely filed (with the complaint) showed Mortgage

Electronic Registration System, Inc, (MERS) as the mortgagee, as nominee for

Novastar Mortgage, Inc. (the original lender.) The Bank, after initiating this

foreclosure suit, obtained an assignment of the mortgage from MERS. However,

the original of the note, which was filed (albeit late) in support of Appellee’s

motion for summary judgment actually proved the existence of genuine issues of

material fact, in that showed that the Bank in fact was not the owner of the note,

and therefore lacked standing to bring the suit, and accordingly was not entitled to

judgment as a matter of law.

III.

The trial court erred in entering summary judgment in that the motion for

summary judgment was premature.

9
A copy of the mortgage and copies of two riders to the mortgage had been filed
and served with the complaint.

8
 Appellant and Appellee agreed to the entry of an “agreed order” allowing

Appellant 20 days after entry of the “agreed order” in which to respond to the

Complaint. Appellee filed that proposed order with the clerk, but the order was

never entered by the trial court. Accordingly, Appellants response was not yet due,

and the motion for summary judgment was premature.

IV.

The trial court erred in entering summary judgment in that Appellant’s

defenses, which included that the complaint failed to state a cause of action, that

the plaintiff lacked standing, that the motion was legally insufficient, and that there

was no proof of occurrence of conditions precedent, had not been negated.

The complaint failed to state a cause of action as filed in that the complaint

and exhibits, taken as a whole, showed that the plaintiff Bank lacked standing and

lacked standing to bring this action when filed. The mortgage, an exhibit to the

complaint, contradicted critical allegations of the complaint, and as the exhibits

controlled, material allegations necessary to state a cause of action were negated.

The motion for summary judgment was legally insufficient in that if failed to

state with particularity the grounds upon which it was based and the substantial

matters of law to be argued, did not contain any allegation that there existed no

genuine issue of material fact, and did not specifically identify any affidavits,

answers to interrogatories, admissions, depositions, and other materials as would

9
be admissible in evidence (“summary judgment evidence”) on which the movant

relied. Additionally, supporting the affidavits were legally insufficient, as was the

motion itself.

Verizzo also raised as an affirmative defense the non-occurrence of

conditions precedent to the bringing of the action, and there was no proof offered

by the Bank, other than by allegation, denied by Verizzo, that such conditions

precedent had occurred or had been waived.

For these reasons, and as set forth with more specificity below, there existed

genuine issues of material fact and the Bank was not entitled to summary judgment

as a matter of law, and accordingly the summary judgment of foreclosure should

be reversed and the cause remanded for further proceedings.

10
 ARGUMENT

I. THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT

IN THAT SUMMARY JUDGMENT EVIDENCE CRITICAL TO THE
BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT TIMELY
SERVED AND FILED

The Bank relied on summary judgment evidence that was not timely filed, as

it failed to timely serve and file critical summary judgment evidence on which it

relied in its Motion for Summary Final Judgment of Foreclosure.

The Bank’s Motion for Summary Final Judgment of Foreclosure and notice

of hearing thereon were served August 5, 2008, which notice set the hearing for

August 29, 2008. That motion, when served, had attached to it three affidavits

(which addressed only costs, time, and fees) and a billing receipt reflecting for

service of process fees.10 It should be noted that none of these documents even

address the underlying issue of the Bank’s entitlement to summary judgment;

rather, they only address the issues of costs and fees incurred. Although not

specifically stated in the motion, it would appear that the Bank intended to rely on

those affidavits and the invoice in support of its motion.

10
The documents served timely with the motion for summary judgment were:
1. Affidavit of Costs (A. 40, R. 54)
2. Affidavit of Time and Effort (A. 42, R. 56)
3. Affidavit as to Attorney’s Fees (A. 43-44, R. 57-58)
4. Invoice (for Service of Process fees) (A. 41, R. 55)

11
 That motion and the accompanying documents were timely served and

noticed pursuant to Fla. R. C. P. 1.510, which requires service of documents in

support of a motion for summary judgment to be served 20 days prior to the

hearing on a motion for summary judgment.

However, thereafter, on August 18, 2008, only eleven days prior to the

hearing, the Bank served by mail only, a Notice of Filing, which gave notice of

filing, and had attached with it, the following:

a. Adjustable Rate Note (Original of the Promissory Note) (A. 51-

55, R. 75-79)11

b. Prepayment Addendum to Note (A. 56-57, R. 80-81)

c. Original of the Recorded Mortgage (with three riders) (A. 58-80,

R. 82-106)

d. Original of the Recorded Assignment of Mortgage (A. 81, R.

107)

These documents, of which only the mortgage had been previously

served or filed (as a copy) were not served in a timely manner, that is, at least 20

days prior to the hearing, and accordingly, the Bank was not entitled to rely on

them in support of its Motion for Summary Judgment, and the Court should not

have considered them in making its ruling.

11
Prior to this, not even a copy of the note had been served or filed.

12
 Because of the untimely service of the Bank’s summary judgment evidence,

Defendant requested of the Bank’s counsel that the hearing on the motion for

summary judgment be reset, but counsel refused to do so, stating not that they did

not intend to rely on these documents, but only that they (the Bank’s counsel)

interpreted the rule differently. The rule, however, is clear and unambiguous.

Fla.R.C.P. 1.510 states, in pertinent part:

RULE 1.510. SUMMARY JUDGMENT

***
(c) Motion and Proceedings Thereon. The motion shall state with
particularity the grounds upon which it is based and the substantial matters of law
to be argued and shall specifically identify any affidavits, answers to
interrogatories, admissions, depositions, and other materials as would be
admissible in evidence (“summary judgment evidence”) on which the movant
relies. The movant shall serve the motion at least 20 days before the time fixed
for the hearing, and shall also serve at that time copies of any summary
judgment evidence on which the movant relies that has not already been filed
with the court.
***
In Cook v. Navy Point, Inc., 88 So.2d 532 (Fla. 1956) the court
acknowledged:
“[…documents] in support of the motion [for summary judgment,]
if any there are, should be filed with it to allow the opponent time to
controvert them. The … minimum time limit prescribed for service is
often none too long, considering the swift and dispositive character of
the motion. A motion for summary judgment is calculated to save
valuable trial time and thus to assist in securing speedy and inexpensive
justice, but one object of the [notice requirement] is to prevent surprise,
and this equally praiseworthy objective should not be overlooked. * * * "

That element of surprise was present, and substantially and materially

prejudicial to Appellant. The original (1) promissory note (and rider,) (2)

13
mortgage (and riders,) and (3) assignment of mortgage to the Bank were evidence
vital to the Bank’s claim of right to foreclosure,12 and therefore vital to its claim of
entitlement to summary judgment, yet all were served late and therefore untimely.
In the instant case, because these documents were served only 11 days before the
hearing, Verizzo did not get the benefit of the required notice as required by rule.
It is suggested that to not give an opposing party the full time benefit afforded by
Fla.R.C.P 1.510 is a denial of procedural due process.
Accordingly, these documents served untimely late on August 18, 2008, all
of which were vital to the Bank’s claim, should have been stricken or not
considered by the Court at hearing on Defendant’s Motion for Final Summary
Judgment heard August 29, 2008, precluding proper entry of summary judgment.

II. THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT

IN THAT THE BANK LACKED STANDING AS IT WAS NOT THE

OWNER AND HOLDER OF THE NOTE

12
The late-served and filed promissory note (A. 51-55, R. 75-79) shows on its face
that the original maker of the note was Novastar Mortgage, Inc., a Virginia
Corporation. The last page of the note (A. 55, R. 80) bears a non-recourse
endorsement stamp by Novastar Mortgage, Inc., a Virginia Corporation to
“JPMorgan Chase Bank, as Trustee”, and also bears a stamp that reads “JPMorgan
Chase Bank, National Association as Trustee for the Novastar Home Equity Loan
Asset-Bank Certificates, Series [2006-3] with the “2006-3” filled in by hand. It is
unclear whether this second stamp is an acknowledgement, and acceptance, a
clarification as to specific trust, or indicates some other purpose. In any case, the
document on its face shows that the note is owned by JPMorgan Chase, which was
not a party to the case, and as discussed below in Issue II.

14
 The owner of the promissory note, JPMorgan Chase Bank, as Trustee, was

not a party to the case.13 The Appellee is the owner of the mortgage (by

assignment,) but such is insufficient to gain standing in a mortgage foreclosure

action. As a mortgage foreclosure case is nothing more than a foreclosure on the

security for the note, the owner and holder of the note is an indispensible party, as

no other party has standing to sue. Accordingly, the Bank lacks standing in this

case.

The promissory note (A. 51-55, R. 75-79) shows on its face that the original

maker of the note was “Novastar Mortgage, Inc., a Virginia Corporation.” The last

page of the note (A. 55, R. 80) bears a non-recourse endorsement stamp by

“Novastar Mortgage, Inc., a Virginia Corporation” to “JPMorgan Chase Bank, as

Trustee”, and also bears a stamp that reads “JPMorgan Chase Bank, National

Association as Trustee for the Novastar Home Equity Loan Asset-Bank

Certificates, Series [2006-3], with the “2006-3” filled in by hand. (It is unclear

whether this second stamp is an acknowledgement, and acceptance, a clarification

13
Appellant, because of the late service of the promissory note, did not have
sufficient time to examine the original promissory note prior to hearing on
Appellee’s motion for summary judgment, and therefore, not realizing that the note
had been endorsed to JPMorgan Chase Bank, incorrectly argued in his
memorandum in opposition to motion for summary judgment that the owner of the
note was the original lender, Novastar Mortgage, Inc. Notwithstanding this, the
legal basis of the argument - that the plaintiff, Appellee here, is not the owner of
the note - remains unchanged despite the different entity.

15
as to specific trust, or indicates some other purpose. It is suggested, however, that

the function of this second stamp is irrelevant to the arguments in this appeal.) The

effect of this endorsement is that it made JPMorgan Chase Bank, as Trustee, the

owner and holder of the Note. There is no record of any assignment or

endorsement of the Note to the Bank of New York; JPMorgan Chase Bank, as

Trustee is therefore an indispensible party, but JPMorgan Chase Bank, as Trustee

was not a party to this action, and accordingly, The Bank of new York lacked

standing to bring this action.

The named Appellee is “The Bank of New York, as successor trustee under

Novastar Mortgage Funding Trust, Series 2006-3.” However, the exhibits to the

complaint (A. 1-27, R. 1-27 ) show that MERS (Mortgage Electronic Registration

Systems, Inc.) was the mortgagee at time of filing of the complaint, and state that

MERS has the right to foreclose on the property given as security. Similarly,

that copy of the mortgage attached as exhibit to the complaint name Novastar

Mortgage Inc. as the Lender, that is, the apparent (by that document) owner of the

note. It appears that the Bank attempted to correct this defect in that it obtained,

recorded, and filed an assignment of the mortgage from MERS to the Bank after

filing and service of the Complaint.14 Appellant would suggest, however, that such

14
As discussed elsewhere, service and filing of this document was untimely late
and should not have been considered by the Court.

16
assignment, recordation, and filing does nothing to alter the failure of the

Complaint as filed to state a cause of action, regarding which Verizzo moved to

dismiss. (A. 85-87, R. 112-114) Likewise, it does nothing to cure the issue of

lacking of standing by the Appellee.

Although the complaint alleges that the Bank is the owner of the subject

note, and although it is admitted that ordinarily such allegation of ultimate fact

would be sufficient to withstand a motion to dismiss, here it is not sufficient, as the

documents attached as exhibits to the complaint negate the allegations. See Fladell

v. Palm Beach County Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000) ("If an

exhibit facially negates the cause of action asserted, the document attached as an

exhibit controls and must be considered in determining a motion to dismiss.")

In a strikingly similar case, Bank of New York v. Williams, 979 So.2d 347

(Fla. 1st DCA 2008,)15 apparently the same plaintiff as in the instant case, albeit

acting for a different trust, appealed an award of attorneys’ fees entered against it

in a mortgage foreclosure suit.16 The court, in affirming the award under Florida

Statute section 57.105, properly noted that “The Bank's complaint and amended

15
In that case, the court also noted that plaintiff was “The Bank of New York,
acting solely in its capacity as trustee for Equicredit Corporation Trust 2001-2.”
16
Counsel for the Bank (in the instant case) obtained and recorded an assignment
of the subject mortgage shortly after that case was decided, seemingly in
acknowledgment of the defect in the Complaint as originally filed. Such
assignment did not operate to give standing to the Bank.

17
complaint were dismissed without prejudice on the ground that, because the Bank

failed to show that it owned the mortgage and associated promissory note, the

Bank lacked standing to institute the foreclosure action.” 17

In the instant case, the Bank made an untimely filing attempting to show

that it now owns the mortgage. However, such an assignment made after filing a

foreclosure is insufficient to provide standing, See, e.g. In Re Foreclosure Cases

(N.D. Ohio 10-31-2007.) (A. 127-131)

In the instant case the record is devoid of any showing that the Bank, the

named plaintiff, was the owner or holder, either by assignment or endorsement, of

the underlying note, or of the mortgage, at the time suit was filed, as is required.

Accordingly, the Bank lacked standing to bring the instant action. Bank of New

York v. Williams, supra., In Re Foreclosure Cases (N.D. Ohio 10-31-2007)

The post-filing assignment of the mortgage to the Bank was not sufficient

to cure this issue of standing; in fact, even an assignment of the mortgage prior to

filing would not have been sufficient to give standing to the Bank. Because the

instant mortgage foreclosure action is based on an alleged default under the note,

the holder, owner, or assignee of the note must be a party to the case. The

mortgage is ancillary. “A mortgage is the security for the payment of the

17
The court in so stating, correctly implied that a plaintiff in a mortgage
foreclosure case must be, and show that it is, both the owner and holder of the note
and of the mortgage.

18
negotiable promissory note, "and is a mere incident of and ancillary to such note."

See Scott v. Taylor, 58 So. 30 (Fla. 1912); see also Johns Supply Co. v. McNeeley,

169 So. 732, 734 (Fla. 1936). In the instant case the Bank made no showing by

summary judgment evidence that it owned the note, and, to the extent that the late-

filed note indicated rights of ownership to the note, that document shows only that

JPMorgan Chase Bank, as Trustee – not the Bank of New York - had such rights,

and JPMorgan Chase Bank was not a party plaintiff.

Other than a mere allegation in the complaint that the bank owns the note,

which allegation has been denied in Verizzo’s answer served subject to his motion

to dismiss,18 the documents filed in this matter - albeit filed late by the Bank -

show that JPMorgan Chase Bank, as Trustee is the owner of the note. Although

the Bank untimely filed an assignment of mortgage (which assignment, it should

be noted, was made after the bringing of this lawsuit, that is, before they had any

right to bring the suit19) there has been no assignment or endorsement of the

note to the Bank .20

18
Which denial is accurate, based upon the Note as filed.
19
Such making and recording the assignment of mortgage is insufficient to cure
lack of standing, as addressed elsewhere herein. See, e.g. In Re Foreclosure Cases
(N.D. Ohio 10-31-2007)
20
The mortgage itself names Mortgage Electronic Registration System, Inc.
(MERS) as the mortgagee. Mortgage Electronic Registration System, Inc.,
incorrectly named as “Mortgage Electronic Registration System as Nominee for
Novastar” in the untimely filed Assignment of Mortgage, was not at any time the

19
 Because JPMorgan Chase Bank, as Trustee, is the named record owner and

holder of the note, and the Bank has not shown otherwise, JPMorgan Chase Bank,

as Trustee, is an indispensible party to this action, as it is the only party that can

have standing to bring this foreclosure action. Further, this record contradiction

regarding ownership of the note, alone, created a genuine issue of material fact

which properly precluded entry of summary judgment.

Accordingly, it is suggested that the motion for summary judgment and

supporting documents (both timely and untimely served) failed not only to show

that there was no genuine issue of material fact or that the Bank was entitled to

judgment as a matter of law, but the documents actually proved that there existed

such genuine issues of material fact, in that the record showed that the Bank lacked

standing as to the Note, showed that JPMorgan Chase Bank, as Trustee owned the

note and was therefore an indispensible party to the action, and accordingly, the

Court erred in granting the motion and entering summary judgment.

owner or holder of the Note. There is no reference to Mortgage Electronic

Registration System, Inc. in the Note, nor has there been any showing of an
assignment to the Bank of New York by Novastar or JPMorgan Chase Bank of
rights to or under the note.

20
III. THE TRIAL COURT ERRED IN ENTERING SUMMARY

JUDGMENT IN THAT THE MOTION FOR SUMMARY JUDGMENT

WAS PREMATURE

The Motion for Summary Judgment of Foreclosure was premature in that it

was heard prior to Verizzo’s response to the complaint being due as per agreement

with counsel for the Bank.21

After service of process upon him, Verizzo timely served and filed a motion

for enlargement of time in which to respond. (A. 28, R. 31) Thereafter, counsel for

the Bank contacted Verizzo telephonically to inquire as to whether she should set

Verizzo’s motion for hearing, or if he would take an “agreed order” providing him

20 days from the date of the order in which to respond to the Complaint. Verizzo

stipulated to the entry of such order. Counsel for the Bank prepared the

documentation, and provided it to Verizzo, who signed and returned it to Counsel,

per her request. The order was never signed, although the unsigned agreed order

was filed per a Notice of Filing.22 (A. 29-30, R. 32-33)

Accordingly, no answer or other response was due at the time the Motion for

Summary Final Judgment of Foreclosure was served and filed, or heard. A recent

22
It is suggested that the manner in which the Agreed Order was transmitted to the
clerk precluded the likelihood of the trial Court seeing or signing the order. Rather
than filing the Agreed Order, it should instead have been mailed directly to the
judge, along with copies and envelopes for mailing the signed order to the parties.

21
case looked at this principal of prematurity of a motion for summary judgment. In

reversing a summary judgment, the court in Greene v. Lifestyle Builders, 985

So.2d 588 (Fla. 5th DCA 2008) stated “In this mortgage foreclosure case, we

review the propriety of the summary judgment in favor of Appellee, the

mortgagee. Because Appellee filed the motion for summary judgment before the

answer was due and failed to meet its burden to establish conclusively that no

answer could present a material issue of fact, we conclude that summary judgment

was premature. Accordingly, we reverse and remand this cause for further

proceedings.” The court also noted that, “Under these circumstances, Appellee had

an "unusually heavy" burden to conclusively negate every defense that might be

presented in the answer.” Greene, supra.

In the instant case, not only was Defendant’s answer not due, but, by

agreement with counsel for Verizzo, his response was not even due.

As in the cited case, it is suggested that the summary judgment motion was

premature, and accordingly, it was premature for the trial Court to entertain the

motion or enter judgment on it.

IV. THE TRIAL COURT ERRED IN ENTERING SUMMARY

JUDGMENT IN THAT APPELLANT’S DEFENSES HAD NOT BEEN

NEGATED

22
 As set out more fully below, Appellant raised multiple defenses in his

Answer (filed subject to his Motion to Dismiss) that had not been negated by the

Bank, as required to properly receive a summary judgment.

a. THE COMPLAINT FAILED TO STATE A CAUSE OF ACTION.

The complaint failed to state a cause of action as filed in that the complaint
and exhibits, taken as a whole, showed that the plaintiff Bank lacked standing and
lacked standing to bring this action when filed.23 This argument is adequately
addressed within Issue II of this brief.
It is axiomatic that if a complaint fails to state a cause of action in that the
exhibits contradict the allegations, and there is no reconciliation timely and prior to
a Motion for Summary Judgment, such motion for summary judgment should have
been denied and the complaint dismissed without prejudice upon the motion to
dismiss as filed by Verizzo.

b. THE MOTION FOR SUMMARY JUDGMENT IS LEGALLY

INSUFFICENT

23
It is further suggested that there is not even an entity named “The Bank of New
York” which was the plaintiff below (without regard to its capacity as trustee, as
here.) In fact, according to the Bank’s website, “Effective July 1, 2007, The Bank
of New York Company, Inc. and Mellon Financial Corporation merged with and
into a newly formed company called The Bank of New York Mellon Corporation
[NYSE: BK].” See http://www.bnymellon.com/investorrelations/merger.html
This is a curable technical defect, but further shows the lack of standing of the
Bank as the named Plaintiff, inasmuch as the named Plaintiff does not exist.

23
 The Motion for Final Summary Judgment of Foreclosure was legally

insufficient in that it does not meet the minimum requirements of Fla.R.C.P. 1.510

(Summary Judgment.)

Section (c) of that rule, in pertinent part, states, “The motion shall state with

particularity the grounds upon which it is based and the substantial matters of law

to be argued and shall specifically identify any affidavits, answers to

interrogatories, admissions, depositions, and other materials as would be

admissible in evidence (“summary judgment evidence”) on which the movant

relies. “

The subject motion for summary judgment (A. 37-44, R. 51-58) does not

identify the summary judgment evidence on which the movant relied,24 nor does it

state with particularity the grounds upon which it is based. Rather, the motion

merely states, in summary, that the Bank has a note and mortgage on the

property25, that these documents provide for acceleration and foreclosure, and

provide for an award of attorneys’ fees. It is suggested these provisions referred to

in the motion were irrelevant regarding the essence of the Bank’s entitlement to

Summary Judgment of Foreclosure. Virtually every mortgage has such provisions.

This is not a complete ground upon which a motion for summary judgment may be

24
Other than very generally, as “[t]he pleadings and exhibits filed herein, as well
as Plaintiff’s affidavit in support thereof…”
25
A false statement, as discussed elsewhere herein.

24
properly based – it certainly is insufficient to put the non-moving party on notice

adequate to defend against a motion for summary judgment, as intended by the

rule.

That same section of the applicable rule requires that the substantial matters

of law to be argued be set forth. Movant’s motion does not do this in any

meaningful or relevant way, but rather states only, “The substantial matters of law

to be argued is the priority of the Plaintiff’s mortgage over the interest of all other

Defendants in the real property encumbered by said mortgage and Plaintiff’s

entitlement to an award of attorney’s fees.” (in the first non-numbered paragraph at

A. 37, R. 109) In support of that statement, movant also claimed “The pleadings

and exhibits filed herein, as well as Plaintiff’s affidavit in support thereof, establish

that Plaintiff’s mortgage is a purchase money mortgage or was recorded prior to

the recording of the instruments creating the liens in favor of those Defendants

who claim an interest in the real property encumbered by the mortgage.”

(paragraph 3 at A. 37, R. 109) In fact, there is no support for this statement; it is

false, as the deed to the Defendant was recorded over a year prior to the existing

mortgage (A. 97, R. 124) under foreclosure; the existing mortgage was the only

lien on the property, and Verizzo was the only defendant.26

26
It is also suggested that it is unclear as to what movant means by “the liens in
favor of these Defendants” as such have not been identified with the required
particularity.

25
 As a third point regarding the legal insufficiency of the motion, Appellant

points out that that the subject motion also does not, as is required, specifically

identify any affidavits, answers to interrogatories, admissions, depositions, and

other materials as would be admissible in evidence (“summary judgment

evidence”) on which the movant relies, as required by the rule. A mere general

statement, as the Bank made, encompassing “the pleadings and exhibits filed

herein, as well as Plaintiff’s affidavit27 in support thereof” cannot in any sense be

deemed to specifically identify the documents, as required by rule.

Moreover, it appears that one or more supporting affidavits are legally

insufficient (rendering the summary judgment evidence insufficient if any such

defective affidavit would be required to support any judgment made in reliance

thereon,) in that it or they were not made upon personal knowledge, as required,

27
The Bank filed five affidavits, specifically, an affidavit of indebtedness, a non-
military affidavit, an affidavit of costs, an affidavit of time and effort, and an
affidavit as to attorneys’ fees, yet in it’s motion, the Bank only refers to “Plaintiff’s
affidavit,” that is, only one affidavit. It should be noted that the affidavit of
indebtedness states, inter alia, that “The allegations of the Complaint filed in this
action are true and correct.” However, that statement is false, in that the complaint
states at paragraph 3 that “Plaintiff is the owner of said note” when in fact that
entity’s own filings have shown that JPMorgan Chase Bank is the owner of the
note.

26
and do not have attached to them the documents upon referred to.28 Fla. R. C. P.

1.510(e) requires that “Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify

to the matters stated therein. Sworn or certified copies of all papers or parts

thereof referred to in an affidavit shall be attached thereto or served

therewith. * * *”

In this case, the affidavit of costs (A. 40, R. 54) states that is based on

personal knowledge, not that it is made on personal knowledge, as required. The

affidavit of indebtedness (A. 31-34, R. 39-50) does claim to be made on personal

knowledge, but none of the other affidavits (A. 40, 42, 43-44 R. 54, 55, 57-58)

state that they are made with personal knowledge. It is suggested that such

omission at a minimum gives inference that those affidavits were not all made on

personal knowledge, and therefore did not affirmatively show that the affiant was

competent to testify, as required by the rule.

Last, the motion does not show, or even claim, that there is no genuine issue

of material fact. It is suggested such deficiency renders the motion fatally

defective, as this is the first basis of a summary judgment motion, and entitlement

28
Sworn or certified copies of documents referred to in the affidavits were neither
attached to the affidavits, nor were they otherwise with the affidavits, as required
by Fla. R. C. P. 1.510(e).

27
to summary judgment. The existence of any genuine issue of material fact, of

which many were presented to the trial court and are again presented in this appeal,

precluded proper entry of summary judgment.

Accordingly it is suggested that the Motion for Summary Final Judgment of

Foreclosure was legally insufficient, and should have been denied without

prejudice.

Accordingly it is suggested that the motion for summary judgment and

supporting documents (both timely and untimely served) failed to show that there

was no genuine issue of material fact, and the motion should have been denied.

c. NO PROOF OF OCCURRENCE OF CONDITIONS PRECEDENT.

Similarly, the complaint alleges, inter alia, that “All conditions precedent to

the filing of this action has [sic] been performed or has [sic] occurred.” (paragraph

15 at A. 2, R. 2) Defendant, in his answer filed subject to his motion to dismiss for

failure to state a cause of action, denied this allegation; additionally, Verizzo raised

failure of conditions precedent as an affirmative defense in his answer.29 There is

no other claim or proof by the Bank, other than its bare allegation quoted above,

29
Section 7.(C) of the note specifies the type of notice that the note holder may
give the borrower upon default; Section 8 specifies the method of notice; Section
7.(E) allows the note holder to recover costs and expenses of enforcing the note
only if the notice as provided in Section 7.(C) is given, (A. 53, R. 78) but that
notice was not given to Verizzo. Accordingly, the conditions precedent to bringing
the suit as filed had not occurred.

28
that the conditions precedent have occurred, been performed, or otherwise waived

or satisfied.30 It is suggested that this too, alone (that is, again, an allegation and a

denial without other summary judgment evidence,) is sufficient to preclude the

required showing that there is no genuine issue of material fact.

Accordingly it is suggested that the motion for summary judgment and

supporting documents (both timely and untimely served) fail to show that there is

no genuine issue of material fact, and the motion should have been denied.

CONCLUSION

For the reasons above stated, the Bank had not demonstrated conclusively

and with certainty that Appellant could not raise any genuine issues of material

fact, as the pleadings and papers in the record, both timely and untimely filed,

showed in fact that there existed genuine issues of material fact and that the Bank

was not entitled to summary judgment as a matter of law, precluding proper entry

of summary judgment. Accordingly, the summary judgment should be reversed

and the cause remanded for further proceedings.

30
That is, there was no summary judgment evidence to support the allegations by
the Bank as to the occurrence of all conditions precedent. The allegations of
Appellant were legally sufficient to controvert the Bank’s allegations to raise a
genuine issue of material fact, precluding proper entry of summary judgment.

29
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing and following

was served by mail to Ingrid Rebecca Nilsen, Esquire, and Patricia A. Arango,

Esquire, Law Offices of Marshal C. Watson, P.A., Attorney for Appellee, 1800

NW 49th Street, Suite 120, Fort Lauderdale, FL., Florida 33309 and the original

mailed to the clerk for filing this 22nd day of May, 2009,

______________________________
David Verizzo
Appellant, pro se
5657 Forester Pond Avenue
Sarasota, FL 34243
941-822-2884
Fax: 866-877-9600

30
 CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the foregoing Initial Brief of Appellant complies

with Florida Rule of Appellate Procedure 9.210 requiring the font size of the type

herein to be at least fourteen points if in Times New Roman font.

______________________________
David Verizzo
Appellant, pro se
5657 Forester Pond Avenue
Sarasota, FL 34243
941-822-2884
Fax: 866-877-9600

31