IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO: CACE 17-23544

DIVISION: 11

WILMINGTON SAVINGS FUND

SOCIETY, FSB, D/B/A/ CRISTIANA
TRUST, NOT INDIVIDUALLY BUT AS
TRUSTEE FOR PRETIUM MORTGAGE
ACQUISTION TRUST
Plaintiff,

vs.

JAMES EDWARD GOODWIN, et. al.

______Defendant(s) _____ __________/
DEFENDANT JAMES E. GOODWIN’S VERIFIED RESPONSE IN OPPOSITION
TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

COMES NOW Defendant, JAMES EDWARD GOODWIN, whom hereby files

this, my Verified Response in Opposition to Plaintiff’s Motion for Summary Judgment

and as grounds thereof states:

On December 28, 2017, Plaintiff, Wilmington Savings Fund Society, FSB, D/B/A

Christiana Trust, Not individually but as Trustee for Pretium Mortgage Acquisition Trust

(hereinafter “Wilmington”), filed (without standing to do so 1) a foreclosure complaint

against me, James E. Goodwin and others. In paragraph five (5) of its complaint,

Plaintiff alleges that it is the “holder of the original note”…

However, the record here shows that I, the Defendant signed a promissory note in

favor of First Magnus Financial Corporation, (First Magnus) on or about March 7, 2005 –

not Plaintiff, Wilmington. The record also reveals that I secured the note with a

mortgage, also in favor of First Magnus - on my home located at 2660 NW 25 th Street,

1 The documents attached to Plaintiff’s complaint names an entirely different entity (First Magnus
Financial Corporation) as the possible “real party in interest” regarding the alleged mortgage and note.
More importantly, the note attached to Plaintiff’s complaint is not endorsed, nor is there any evidence of
an allonge, let alone, an allonge ever being attached to the un-endorsed note.

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Fort Lauderdale, Florida 33311. The mortgage indicated that an entity by the name of

Mortgage Electronic Registration Systems, Inc. (MERS) would be acting as the nominee

of the lender, First Magnus.

In its complaint, Wilmington alleged that it was the owner and holder of the note

and mortgage and it attached only copies of an alleged mortgage and note to its

complaint. However, as earlier stated, the mortgage attached to Plaintiff’s complaint

showed that it was in favor of an entity by the name of First Magnus, and the copy of the

four (4) page un-endorsed note showed that it to, was payable to First Magnus.

Further, the un-endorsed Note attached to the complaint did not include an

Allonge. Notably, there is also an un-titled and mysterious piece of paper attached to the

complaint, along with a variety of Addendums filed contemporaneously with the un-

endorsed Note. Interestingly, the un-titled piece of paper seems to bare some sort of

stamped markings that appears to be endorsements of some sort. Clearly the un-titled

piece of paper is not attached to, or associated with the subject Note, nor does it refer to

or relates to the un-endorsed Note. Therefore, as of the date the original complaint was

filed, no document of record connected Wilmington to the note on behalf of Magnus.

Nevertheless, even if Wilmington is asserting (which it has not, because it

cannot), that the un-titled piece of paper represents some sort of an Allonge to the un-

endorsed Note, such an assertion would be meritless. This is true because clearly, the

untitled piece of paper shows no signs of ever being stapled to, attached to, or in any

other way, "affixed" the Note - but rather was a separate document filed in the court file.

More importantly, the piece of paper does not in any way identify me (as the borrower),

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my home (as the property address), a loan number, or any other details connecting the

piece of paper with the un-endorsed Note filed by Plaintiff.

Also on December 28, 2017, Plaintiff filed a December 6, 2017 document entitled

“Notice of Submitting Fla.Stat. 702.015(4) Certification”. In the December 6, 2017

Certificate, an employee of Plaintiff’s attorney by the name of Vidhi Shah declared under

penalties of perjury that “some original allonges may be affixed by stamp”

On August 29, 2018, I filed an amended Answer and affirmative defenses to

Plaintiff complaint. In my August 29, 2018 answer and defenses, I adamantly challenged

Plaintiff’s standing and its alleged status as “holder” of the subject Note

Also on August 29, 2018, Plaintiff filed its Motion for Summary. However, an

order setting this instant case for a March 5, 2019 non-jury trial was also entered on

August 29, 2018. Although trial was later set for March 5, 2019 trial date, Plaintiff made

no attempts whatsoever to withdraw its August 29, 2018 motion for summary judgment.

Instead of withdrawing its August 29, 2108 motion for summary judgment,

Plaintiff choose on September 12, 2018 to deceitfully proceed with preparing for both the

March 5, 2019 trial (by filing its amended “witness list”) and by simultaneously

preparing for its August 29, 2018 motion for summary judgment (by filing an affidavit

regarding said motion for summary judgment).

It was not until October 8, 2018, before Plaintiff filed the so called “original note

and mortgage”. Unlike the copy of the alleged note filed with the complaint, the so

called “original note” filed by Plaintiff on October 8, 2018 (over 9 months later) is much

more legible. However, the fact that the alleged Note is still filed without an endorsement

and/or Allonge, remains un-changed.

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 Although trial is still currently set for March 5, 2015, on October 8, 2018,

Plaintiff still choose to file an Affidavit of Indebtedness allegedly in support of its August

29, 2018 Motion of Summary Judgment. Plaintiff’s October 8, 2018, Affidavit included

as Exhibit B a copy of the alleged original Note with the alleged “proper chain of

endorsements and blank endorsement is attached” thereto… Notably however, Exhibit B

attached to the affiant’s affidavit is only a duplicate copy of the same un-endorsed Note

that Plaintiff filed as an Exhibit to its December 28, 2017 complaint. As such, the

affiant’s testimony regarding the Note, is relying solely on the same insufficient copy

filed with Plaintiff’s complaint.

More importantly, October 8, 2018 affidavit does not state, nor does it include any

documents or other evidence establishing that Wilmington owned and/or held the undated

and un-endorsed Note and mortgage as of December 28, 2017 - the date the original

complaint was filed. Clearly, Plaintiff’s Affiant’s affidavit only states that …”Plaintiff

has had possession (not owned or held) of the Note since prior to the date of the

commencement of the foreclosure action” (Emphasis added). Moreover, the affidavit

does not prove when the un-endorsed Note and/or the piece of paper was created, and

signed or when (or if) the piece of paper was ever attached to the note.

As such, Wilmington is not entitled to summary judgment in its favor because it

has not proven that it owned and held the original and properly endorsed Note and

mortgage on the date the original complaint was filed and has therefore failed to prove its

standing to file this instant case.

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 Memorandum of Law

Plaintiff has Failed to Prove an

Entitlement to Summary Judgment

A movant is entitled to summary judgment as a matter of law only "if the

pleadings, depositions, answers to interrogatories, admissions, affidavits, and other

materials as would be admissible in evidence on file show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law." Fla. R. Civ. P. 1.510(c); see also Fisel v. Wynns, 667 So.2d 761, 764 (Fla.1996);

Kitchen v. Ebonite Recreation Ctrs., Inc., 856 So.2d 1083 (Fla. 5th DCA 2003); Krol v.

City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001).

Moreover, the party moving for summary judgment must meet its burden of

showing conclusively the absence of any genuine issue of material fact. Kitchen; Krol; 

Hoch v. Rissman, Weisberg, Barrett, 742 So.2d 451 (Fla. 5th DCA 1999), review denied,

760 So.2d 948 (Fla.2000). The burden of proving the existence of such issues is not

shifted to the opposing party until the movant has successfully met his burden." Nard,

Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000)

(quoting Holl v. Talcott, 191 So.2d 40, 44 (Fla. 1966)). “The merest possibility of the

existence of a genuine issue of material fact precludes the entry of final summary

judgment."

It is well established Florida law that the summary judgment evidence and any

supporting affidavits must be examined in the light most favorable to the non-moving

party and if the slightest doubt exists, summary judgment is inappropriate. Turner v.

PCR, Inc., 754 So.2d 683 (Fla.2000); Lawrence v. Pep Boys-Manny Moe & Jack, Inc.,

842 So.2d 303, 305 (Fla. 5th DCA 2003). As such, this Court must view the evidence

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contained in this instant record, including any supporting affidavits, in the light most

favorable to myself, the non-moving party, and if the slightest doubt exists, the summary

judgment must not be entered (See Krol;  Besco USA Int'l Corp. v. Home Savs. of Am.

FSB, 675 So.2d 687, 688 (Fla. 5th DCA 1996)).

Here, there still remains a genuine issue as to whether Plaintiff has submitted a

properly endorsed Promissory Note, and thus has failed to prove its entitlement to

summary Judgment and to enforce subject Promissory Note.

The Un-endorsed
Promissory Note (“the Note”)

"A promissory note is a negotiable instrument." Deutsche Bank Nat'l Trust Co. v.

Clarke,87 So.3d 58, 60-61 (Fla. 4th DCA 2012). Where a document is a negotiable

instrument, the best evidence rule, as codified, requires the production of the original. §

90.953(1), Fla. Stat. (2016) ("A duplicate is admissible to the same extent as an original,

unless ... [t]he document or writing is a negotiable instrument...."). "Therefore, a party

who seeks to foreclose on a mortgage must produce the original note." Clarke, 87 So.3d

at 61.

"An allonge is a piece of paper annexed to a negotiable instrument or promissory

note, on which to write endorsements for which there is no room on the instrument itself.

Such must be so firmly affixed thereto as to become a part thereof." See Booker v.

Sarasota, Inc., 707 So.2d 886, 887 n.1 (Fla. 1st DCA 1998). Although Florida's Uniform

Commercial Code does not specifically mention an allonge, the Code provides that "[f]or

the purpose of determining whether a signature is made on an instrument, a paper affixed

to the instrument is a part of the instrument." § 673.2041(1), Fla. Stat. Isaac v. Deutsche

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Bank Nat'l Trust Co., 74 So.3d 495, 496 n.1 (Fla. 4th DCA 2011)(alteration in

original). Isaac also describes the effect of an allonge that does not identify a specific

payee:

Here, the copy of the alleged Note attached to Plaintiff’s complaint is not

endorsed and therefore is insufficient to show that Wilmington had standing (at the

commencement of the case on December 28, 2017) to foreclose. Clearly, the copy of the

unendorsed Note attached to the Plaintiff’s complaint indicates that the note was never

transferred to Plaintiff, Wilmington (or anyone else for that matter). Moreover,

Wilmington has never filed an original and proper allonge.

"In order to prevail in a suit on a note and mortgage, the original note and

mortgage must be introduced into evidence or a satisfactory reason must be given for

failure to do so." Fair v. Kaufman, 647 So.2d 167, 168 (Fla. 2d DCA 1994). Because an

allonge is essentially part of an unendorsed note, see Isaac v. Deutsche Bank Nat'l Trust

Co., 74 So.3d 495, 496 n.1 (Fla. 4th DCA 2011), it is absolutely necessary for

Wilmington to file an original allonge along with the original note – here, that has not

happened.

Because Wilmington has failed to produce an original Note with the proper

endorsements and/or allonge, and because Plaintiff did not plead a lost instrument count,

there still remains outstanding issue of material facts and therefore, this Court should

deny Wilmington’s motion for summary judgment at this time.

In light of the wealth of current case law on this issue, it should no longer be a

surprise to a foreclosure plaintiff that it must prove that it had standing to foreclose on the

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date the original complaint was filed. See, e.g., Corrigan v. Bank of Am., N.A., 41 Fla. L.

Weekly D345 (Fla. 2d DCA Feb. 5, 2016) (en banc); Tomlinson v. GMAC Mortg., LLC,

173 So. 3d 1121, 1122 (Fla. 2d DCA 2015) (quoting Focht v. Wells Fargo Bank, N.A.,

124 So. 3d 308, 310 (Fla. 2d DCA 2013)); Vidal v. Liquidation Props., Inc., 104 So. 3d

1274, 1276 (Fla. 4th DCA 2013) (quoting McLean v. JP Morgan Chase Bank Nat'l Ass'n,

79 So. 3d 170, 173 (Fla. 4th DCA 2012)). To have standing to foreclose, the plaintiff

must own or hold the note at issue.

Plaintiff’s Lack of
Standing to Foreclose

Standing to foreclose by one other than the original lender can be established

through evidence of an assignment or equitable transfer of the note and mortgage

completed before the complaint is filed. See Focht, 124 So. 3d at 310;

Joseph v. BAC Home Loans Servicing, LP, 155 So. 3d 444, 446-47 (Fla. 4th DCA

2015). Here, there simply is no evidence of an assignment or equitable transfer of the

Promissory Note.

Standing cannot be established by simply filing a note with an undated and un-

endorsed Note and/or allonge months after the original complaint was filed. See Focht,

124 So. 3d at 310; Cutler v. U.S. Bank Nat'l Ass'n, 109 So. 3d 224, 226 (Fla. 2d DCA

2012) (noting that if the bank could not establish that the undated allonge took effect

prior to the complaint being filed, then it would not have standing to bring the foreclosure

action). And attempting to bedazzle the trial court with documents establishing all sorts

of facts unrelated to standing at the inception of the case will not carry the day.

In this case, while Wilmington's documents may or may not be sufficient to

establish its standing as of October 8, 2018 - the date the alleged originals were filed,

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establishing standing as of a date long after the original complaint is filed is not sufficient

to prove standing at the time the original complaint was filed.

Therefore, since Wilmington’s evidence is legally insufficient to prove that it had

standing when it filed the complaint, this Court should deny Plaintiff’s motion for

summary judgment...

Plaintiff’s Insufficient
Affidavit of Indebtedness

The alleged affidavit of Indebtedness filed by Plaintiff on October 8, 2018, arises

solely from the same copy of the legally insufficient Promissory Note Plaintiff filed with

its complaint on December 28, 2017. As such, neither the documentary evidence in the

record, nor the insufficient affidavit filed by Plaintiff on October 8, 2018 (several months

after its complaint was filed), establishes that Wilmington owned or held the un-endorsed

note when it filed the original foreclosure complaint on December 28, 2107. The alleged

original Note, which was filed almost a year after the original complaint was filed, also

did not include an endorsement or an allonge.

Conclusion

Nothing in the record reflects an assignment or endorsement of the note by the

original lender, First Magnus Financial Corporation to the Plaintiff, Wilmington. Thus,

there is a genuine issue of material fact as to whether Plaintiff actually owns and holds

(or ever owned or held) the Note and thus has standing to foreclose the subject mortgage.

See Mortgage Electronic Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d

DCA 2007) (recognizing that the owner and holder of a note and mortgage has standing

to proceed with a mortgage foreclosure action); Philogene v. ABN Amro Mortgage

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Group, Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006) (determining that the plaintiff "had

standing to bring and maintain a mortgage foreclosure action since it demonstrated that it

held the note and mortgage in question").

WHEREFORE, I, the Defendant James E. Goodwin prays that this Honorable

Court deny Plaintiff’s Motion for Summary Judgment and for such other and further

relief as this Court deems necessary and just.

Verification

Under penalty of perjury, we declare that I have read the foregoing, and the facts
alleged therein are true and correct to the best of my knowledge and belief.

___/s/ James E. Goodwin

James E. Goodwin
2660 NW 26th Street
Fort Lauderdale, Florida 33311

CERTIFICATE OF SERVICE

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

provided by the Florida Courts E-Filing Portal and/or by email to Plaintiff’s attorney,

Robertson, Anschutz & Schneid, P.L., at mail@rasflaw.com on this 18th day of

November, 2018.

___/s/ James E. Goodwin

James E. Goodwin
2660 NW 26th Street
Fort Lauderdale, Florida 33311

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