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feltus v. US Bank 2 w

feltus v. US Bank 2 w

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Published by DinSFLA

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Published by: DinSFLA on Jan 31, 2012
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IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDAJanuary 27, 2012JULIA FELTUS, ))Appellant, ))v. ) Case No. 2D10-3727)U.S. BANK NATIONAL ASSOCIATION, as )TRUSTEE of MASTR ADJUSTABLE RATE )MORTGAGES TRUST 2007-3, ))Appellees. ))BY ORDER OF THE COURT:Appellee's motion for rehearing is granted to the extent that the opinion datedOctober 19, 2011, is withdrawn and the attached opinion is substituted in its place. Nofurther motions for rehearing will be entertained.I HEREBY CERTIFY THE FOREGOING IS ATRUE COPY OF THE ORIGINAL COURT ORDER.JAMES BIRKHOLD, CLERK
 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARINGMOTION AND, IF FILED, DETERMINEDIN THE DISTRICT COURT OF APPEALOF FLORIDASECOND DISTRICTJULIA FELTUS, ))Appellant, ))v. ) Case No. 2D10-3727)U.S. BANK NATIONAL ASSOCIATION, as )TRUSTEE of MASTR ADJUSTABLE RATE )MORTGAGES TRUST 2007-3, ))Appellee. ))Opinion filed January 27, 2012.Appeal from the Circuit Court for DeSotoCounty; James S. Parker, Judge.Jacqulyn Mack of The Mack Law Firm,Englewood, for Appellant.Roy A. Diaz and Diana B. Matson ofSmith, Hiatt & Diaz, P.A., Ft. Lauderdalefor Appellee.WHATLEY, Judge.Julia Feltus appeals a final judgment of foreclosure in favor of U.S. BankNational Association, as Trustee of Mastr Adjustable Rate Mortgages Trust 2007-3entered upon U.S. Bank's motion for summary judgment. We reverse because U.S.Bank failed to show conclusively the absence of a genuine issue of material fact andthat it was entitled to foreclosure as a matter of law.
- 2 -On August 24, 2009, U.S. Bank filed an unverified complaint seeking toreestablish a lost promissory note and to foreclose the mortgage on Feltus's home.U.S. Bank attached to the complaint a copy of the note and the mortgage, but bothdocuments showed the lender to be Countrywide Bank, N.A. In the count to reestablishthe note pursuant to section 673.3091, Florida Statutes (2009), U.S. Bank alleged thatthe note was executed by Feltus on February 16, 2007; U.S. Bank is the owner andholder of the note; the original note has been lost and is not in U.S. Bank's custody orcontrol; the note was continuously in the possession and control of U.S. Bank's assignorand predecessor from the date of execution until the loss, at which time the assignorand predecessor was entitled to enforce the note; and the note has not been paid orotherwise satisfied, assigned, or transferred, or lawfully seized. Notably, theseallegations did not include an allegation that Countrywide had assigned the note to U.S.Bank.After Feltus filed a motion to dismiss alleging that U.S. Bank had failed toestablish that it owned or held the subject note, on November 16, 2009, U.S. Bank filedan affidavit of indebtedness executed by Kathy Repka, an assistant secretary of BACHome Loan Servicing, L.P., f/k/a Countrywide Home Loan Servicing, L.P. Repkaasserted that her affidavit was based on the loan payment records of the servicingagent and her familiarity with those records. After she explained that the purpose of therecords was "to monitor and maintain the account relating to a note and mortgage thatare the subject matter of the pending case," Repka asserted that U.S. Bank owns andholds the note described in its complaint. Then on November 18, 2009, U.S. Bank filed

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