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HOMEOWNER APPEAL VICTORY---Ginnifer Gee v U S Bank National Association

HOMEOWNER APPEAL VICTORY---Ginnifer Gee v U S Bank National Association

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Published by 83jjmack
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.
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.

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Published by: 83jjmack on Oct 03, 2011
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 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT JULY TERM 2011GINNIFER GEE,Appellant,v. Case No. 5D10-1687U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ETC.,Appellee. ________________________________/Opinion filed September 30, 2011Appeal from the Circuit Courtfor Marion County,Frances King, Judge.Enrique Nieves, III, of Ice Legal, P.A.,Royal Palm Beach, for Appellant.Andrea Shelowitz and Jesse Davidson, of Gladstone Law Group, P.A., and RonaldM. Gache
́
, of Shapiro, Fishman & Gache
́
,LLP, Boca Raton, for Appellee.ORFINGER, C.J.,Ginnifer Gee appeals from a final summary judgment of foreclosure entered infavor of U.S. Bank National Association as Trustee for the Structured Asset InvestmentLoan Trust 2005-10 (“U.S. Bank”). Ms. Gee argues, among other things, that (1) U.S.Bank lacked standing to bring the foreclosure action, and (2) the summary judgmentwas entered on grounds that were not raised in the summary judgment motion. Wereverse the summary judgment.
 
 2U.S. Bank filed a complaint against Ms. Gee seeking to reestablish a lost noteand mortgage, reform the legal description contained in the mortgage and the deed bywhich Ms. Gee acquired title to the mortgaged property, and then to foreclose thereestablished and reformed note and mortgage. U.S. Bank’s complaint alleged that Ms.Gee executed and delivered a promissory note and mortgage (collectively, “theMortgage”) to Advent Mortgage, LLC, which, in turn, assigned the Mortgage to OptionOne Mortgage Corporation. American Home Mortgage Servicing, Inc., purporting to actas successor in interest to Option One, then assigned the Mortgage to U.S. Bank, andU.S. Bank asserted that the Mortgage was in default.
1
Ms. Gee, acting pro se, filed ananswer, generally denying U.S. Bank’s allegations.U.S. Bank subsequently filed a motion for summary judgment of foreclosure.The motion was silent regarding the reestablishment and reformation claims. In supportof U.S. Bank’s motion, an employee of American Home, now purporting to act as U.S.Bank’s servicing agent, filed an affidavit, averring that the complaint’s allegations weretrue based on her knowledge as custodian of U.S. Bank’s business records, that U.S.Bank owned and held the Mortgage, and that Ms. Gee defaulted under the Mortgage byfailing to make payments as due. Neither the motion nor the affidavit made mention of the lost note, the lost mortgage, or the claim for reformation of the deed and mortgage.To the contrary, the summary judgment motion stated that “the original promissory note,mortgage and assignment of mortgage would be filed on or before the hearing.” After ahearing, the court entered a summary final judgment of foreclosure, which reestablishedthe lost Mortgage, reformed the legal description contained in the mortgage and the
1
Copies of the relevant instruments were attached to the complaint or filed withthe trial court prior to the summary judgment hearing.
 
 3warranty deed, and foreclosed the reestablished and reformed Mortgage. This appealfollowed.This Court reviews an order granting summary judgment de novo. See The Fla.Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006). Summary judgment is appropriateonly “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760So. 2d 126, 130 (Fla. 2000). The court may consider “affidavits, answers tointerrogatories, admissions, depositions, and other materials as would be admissible inevidence” on which the parties rely. Fla. R. Civ. P. 1.510(c). But in doing so, the courtmust draw “every possible inference” in favor of the non-moving party. Dreggors v.Wausau Ins. Co., 995 So. 2d 547, 549 (Fla. 5th DCA 2008); Edwards v. Simon, 961 So.2d 973, 974 (Fla. 4th DCA 2007).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 andmortgage 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]heparty seeking foreclosure must present evidence that it owns and holds the note andmortgage 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 promissorynote to the trial court or seek to reestablish the lost note under section 673.3091, FloridaStatutes (2010). State St. Bank & Trust Co. v. Lord, 851 So. 2d 790, 791 (Fla. 4th DCA2003). If the note does not name the plaintiff as the payee, the note must bear anendorsement in favor of the plaintiff or a blank endorsement. Riggs v. Aurora Loan

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