1. law, govt and politics

Sample of Plaintiff s’ Foreclosure Summary Judgments Reversed
Holly Hill Acres, Ltd. v. Charter Bank of Gainesville, 314 So.2d 209, (Fla. 1st DCA
1975) (summary judgment reversed, disputed facts relating to fraud claims remained, because the
note incorporated terms of purchase money mortgage it was not negotiable and borrower was
entitled to raise any defenses which could have been raised against payees against the assignee)
Beaumont v. Bank of New York Mellon, 81 So. 3d 553 (Fla. 5th DCA 2012) (summary
judgment reversed when judgment entered in favor of Novastar which was a nonparty to the suit
as a result of its prior withdrawal from the case, further judgment creditor would now have to
show it was entitled to enforce the note when it was lost or that it directly or indirectly acquired
ownership from a person who was entitled to enforce the instrument when loss of possession
occurred)
Duke v. HSBC Mortgage Services, LLC, 79 So.3d 778, (Fla. 4th DCA 2012 (summary
judgment reversed as a result of the lack of a valid assignment, upon rehearing the Court clarified
the presence of the original note, properly endorsed could have cured this deficiency)
McLean v. JP Morgan Chase Bank N.A. 79 So. 3d 170 (Fla. 4th DCA 2012) (summary
judgment reversed, standing must be established at the commencement of the case, can be
established by either an assignment or an equitable transfer of the mortgage prior to the filing of
the complaint, lack of proof of when the special endorsement occurred precluded summary
judgment)
Venture Holdings & Acquisitions Group, LLC v. AIM Funding Group, LLC, 75 So.3d
773 (Fla. 4th DCA 2011) (summary judgment reversed because plaintiff did not prove it owned
and held the subject note and mortgage at the time the lawsuit is filed, a requirement that can not
be remedied by a subsequent assignment)
Arsali v. Chase Home Finance, LLC, 79 So. 3d 845 (Fla. 4th DCA 2012) (upheld the
setting aside of a foreclosure sale as a result of settlement reached by plaintiff and borrower
before the sale date over the objection of the of the assignee of the purchaser at the sale, it was
not necessary for the trial court to find the sale price was grossly inadequate)
Pino v. Bank of New York, 76 So.3d 927 (Fla. 2011) (despite the settlement of the case
by the parties, the Supreme Court retained jurisdiction over the appeal relating to the certified
question of great public importance as to whether the purported holder of note could be subject to
sanctions for filing an alleged fraudulent assignment of mortgage even after it filed a notice of
voluntary dismissal before a sanctions motion was heard)
Glarum v. LaSalle Bank Nat. Ass'n, 83 So. 3d 780 (Fla. 4th DCA 2011) (summary
judgment reversed as a result of an insufficient summary judgment affidavit of loan service
specialist who did not know how or when the data entries were made into loan servicer's
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computer system, who made them, or if the records were made in the regular course of business,
further he relied on data supplied by third party, the procedures of which he was even less
familiar, he could state that the data in the affidavit was accurate only insofar as it replicated the
numbers derived from the computer system, and he was not competent to authenticate that data)
Helping Hand Private Foundation, Inc. v. Ocean Palms, 77 So.3d 896 (Fla. 5th DCA
2012) (summary judgment reversed because of insufficient affidavit, affiant did not have
personal knowledge, also plaintiff failed to disprove the affirmative defenses)
Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011) (party seeking foreclosure
must present evidence that it owns and holds the note and mortgage to establish standing, the
person having standing to foreclose a note secured by a mortgage may be either the holder of the
note or a non holder in possession of the note who has the rights of a holder, also affidavit
insufficient because affiant testified he had no knowledge as to who prepared the documents
submitted at trial, was not involved in the preparation of documents such as the ones proffered by
the bank, did not keep records as a records custodian and had no personal knowledge as to how
the information in the affidavit as to the amounts due and owing was determined or whether it
was prepared in the normal course of business, he did not know whether such information was
accurate)
Woodrum v. Wells Fargo Mortg. Bank, N.A., 73 So.3d 873, (Fla. 4th DCA 2011).
(summary judgment reversed, affirmative defenses raised in affidavit in opposition to summary
judgment rather than pleading still must be refuted)
Wroblewski v. American Home Mortg. Servicing, Inc., 68 So.3d 431 (Fla. 5th DCA
2011) (summary judgment reversed, plaintiff failed to overcome defense of lack of notice of
acceleration and opportunity to cure)
Corya v. Sanders, 76 So.3d 31 (Fla. 4th DCA 2011) (accounting trusts summary
judgment reversed, failure to negate trustee's affirmative defenses, including estoppel, waiver and
statute of limitations defenses)
Bryson v. Branch Banking and Trust Co., 75 So.3d 783 (Fla. 2nd DCA 2011)
(foreclosure summary judgment reversed, questions remained regarding affirmative defense of
failure to send required default letter, letters introduced were not self-authenticating and required
extrinsic evidence to establish their truthfulness)
Feltus v. US Bank, N.A. 80 So. 3d 375 (Fla. 2nd DCA 2012) (summary judgment
reversed, affirmative defenses based upon contradictions between the note attached to the
complaint and the allegations of ownership contained in the complaint, also plaintiff filed the
note but failed to amend its complaint)
State Road 7 Investment Corp. v. Natcar Ltd. Partnership, 82 So. 3d 1013 (Fla. 4th DCA
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2011) (summary foreclosure judgment reversed when defendant’s cross claim was pending
against the city regarding a lien and there were disputes as to the amounts owed)
Gee v. U.S. Bank Nat. Ass'n, 72 So.3d 211 ( 5th DCA 2011) (reversed a summary
judgment based upon a claim of ownership supported by two assignments when there was a
missing link in the chain of transfers)
BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d
DCA 2010) (summary judgment reversed as a result of an "incomplete, unsigned, and
unauthenticated assignment....", inconsistencies between the assignment, the mortgage, the note
and the indorsements and the deposition testimony of the bank's corporate representative
precluded summary judgment, also important language about the use of improper documents in
foreclosure)
Beaumont v. Bank of New York Mellon, 81 So. 3d 553 (Fla. 5th DCA 2012), (summary
judgment reversed when entered in favor of plaintiff which had withdrawn and was, therefore, a
non-party, substituted plaintiff failed to sufficiently prove requirements to reestablish the lost
note, failed to prove who lost the note and when it was lost, failed to offer proof of anyone's right
to enforce the note when it was lost, and failed to produce evidence of ownership)
Verizzo v. Bank of New York, 28So.3d 976 (Fla. 2d DCA 2010) (summary judgment
reversed because of inconsistencies in the indorsements on the note and in the assignment, gap in
the chain of transfers)
Servedio v. U.S. Bank Nat. Ass'n, 46 So. 3d 1105 (Fla. 4th DCA 2010) (summary
judgment motion should not be granted unless the facts are so crystallized that nothing remains
but questions of law, summary judgment reversed, moving party must present evidence, properly
authenticated and filed with the court more than 20 days prior to the hearing, that it owns and
holds the note and mortgage in question)
Sandoro v. HSBC Bank, 55 So.3d 730 (Fla. 2nd DCA 2011) (summary judgment
reversed when the assignment purporting to memorialize the mortgage transfer contained an "on
or before" transfer date, renders the date of transfer at best disputed and at worse took after the
filing of the lawsuit)
Goncharuk v. HSBC Mortgage Services, Inc., 62 So. 3d 680 (Fla. 2d DCA 2011)
(summary judgment reversed when issue of acceleration notice remained even though
non-moving party did not file affidavit in opposition)
Alejandre v. Deutsche Bank Trust Company Americas, 44 So. 3d 1288 (Fla. 4th DCA
2010) (foreclosure summary judgment reversed when Real Estate Settlement Procedures Act,
Truth in Lending Act and unclean hands affirmative defenses were not disproved)
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Konsulian v. Busey Bank, N.A. 61 So. 3d 1283 (Fla. 2nd DCA 2011) (foreclosure
summary judgment reversed when bank did not defeat affirmative defense relating to failure to
provide the acceleration notice)
Lazuran v. Citimortgage, Inc., 35 So.3d 189 (Fla. 4th DCA 2010) (foreclosure summary
judgment reversed when affirmative defense of improper acceleration not sufficiently addressed)
Valencia v. Deutsche Bank National Trust Co., 67 So. 3d 325 (Fla. 4th DCA 2011)
(foreclosure summary judgment reversed when there was a discrepancy between the date of
default alleged in foreclosure complaint and the dates referred to in notice to cure letters that
were allegedly sent to mortgagors)
Laurencio v. Deutsche Bank National Trust Company, 65 So. 3d 1190 (Fla. 2d DCA
2011) (affirmative defense of lack of notice precluded summary judgment)
Khan v. Bank of America N.A., 58 So. 3d 927, (Fla. 5th DCA 2011); (summary
judgment reversed when allegations of ownership contained in the complaint were inconsistent
with the attachments)
Leal v. Deutsche Bank, 21 So. 3d 907 (Fla. 3d DCA 2009) (affirmative defense of lack
of notice precluded summary judgment)
Osorto v. Deutsche Bank Nat. Trust Co., --- So.3d ----, 2012 WL 1020022
(Fla. 4 DCA 2012, March 28, 2012) (summary foreclosure judgment reversed as a result of
outstanding discovery, plaintiff failed to provide Osorto, after being compelled to do so, with:
any agreement containing any obligation to repurchase the loan; originals or best copies of
exhibits attached to the pooling and servicing agreement which affect this loan; originals or best
copies of all documents concerning the repurchase or reassignment of the loan from the buyer or
assignee back to the original seller or assignor or to any predecessor of the buyer or assignee; and
originals or best copies of records concerning the transfer or assignment of the loan all of which
may “potentially be material”)
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Harvey Covington & Thomas, LLC v. AC Mortg. Corp.. --- So.3d ----, 2012 WL
1292421 (Fla. 1st DCA 2012, April 17, 2012) (summary judgment reversed when borrower did
not have an opportunity to complete discovery, specifically to take the deposition of the summary
judgment affiant whose testimony may be challenged as hearsay relating to the amount due and
owing)
Rigby v. Wells Fargo Bank, N.A., --- So.3d ----, 2012 WL 1108428 (Fla. 4th DCA 2012,
April 4, 2012) (summary judgment reversed, plaintiff failed to establish had standing, note
containing special endorsement in favor of plaintiff was not dated and assignment of mortgage
provided plaintiff not acquire mortgage until day after complaint was filed)
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Sample of Plaintiffs’ Foreclosure Summary Judgment Upheld
Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010) (summary
judgment upheld, possession of note indorsed in blank is sufficient to prove lawful holder,
plaintiff also provided two affidavits and authenticity was not an issue)
Harvey v. Deutsche Bank Nat'l Trust Co., 69 So.3d 300 (Fla. 4th DCA 2011) (summary
judgment upheld, pro se defendant, no evidence to refute plaintiff, as holder of a note indorsed in
blank, did not have standing)
Deutsche Bank Nat’l Trust Company v. Lippi, 78 So.3d 81(Fla.5th DCA 2012)
(reversed dismissal with prejudice as a sanction when actions not attributable to client, also
found possession of note endorsed in blank was sufficient to prove standing)
Taylor v. Deutsche Bank Nat'l Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010) (final
judgment upheld based upon a minority opinion that an MERS assignment of note and mortgage
was sufficient to support standing)
Trucap Grantor Trust 2010 v. Pelt, 2012 WL 832784 (Fla. 2d DCA 2012) Rule
1.110(b), Fla. Stat. (petition for certiorari granted where plaintiff’s motion to amend foreclosure
complaint to add a lost note count was denied because the proposed amended complaint
contained a verification pursuant to Rule 1.110(b) that was made based upon “knowledge and
belief,” §92.525(2), Fla. Stat., used to uphold t he verification)
Godshalk v. Countrywide Home Loans Servicing, L.P., 81 So.3d 626 (Fla. 5th DCA
2012) (summary judgment affirmed, general denial of provision of notices was not sufficient to
defeat a summary judgment, defendant should have specified it was denying the notice of
acceleration was provided)
Miscellaneous Foreclosure Cases
Kwong v. Countrywide Home Loans Servicing, L.P., 54 So.3d 1033 (Fla. 4th DCA
2011) (reversal of a non-final order denying borrowers’ motion to quash service of process based
upon failure of the process servicer to note, among other things, the time of service on the
process served, strict compliance with statutory requirements of service is mandated)
Henn v. Ultrasmith Racing, LLC, 67 So.3d 444 (Fla. 4th DCA 2011) (defendant is
entitled to fees as the prevailing party when plaintiff voluntarily dismisses without prejudice)
Valcarcel v. Chase Bank USA NA, 54 So.3d 989 (Fla. 4th DCA 2010) (defendant is
entitled to fees as the prevailing party when plaintiff’s case is dismissed without prejudice as a
result of counsel’s misconduct)
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Elston/Leetsdale, LLC v. CWCapital Asset Management LLC, --- So.3d ----, 2012 WL
1108531 (Fla. 4th 2012, April 4, 2012), (order requiring borrower to pay servicer during the
pendency of the lawsuit reversed, servicer for securitized trust was unable to prove it had
standing to request payment, the caption of the verified complaint stated the underlying action
was brought by CW “solely in its capacity as special servicer on behalf of U.S. Bank, N.A.” and
stated it had been duly authorized by the Trust to prosecute the action as agent and special
servicer for the Trust but it did not file any evidence, affidavits or other documents to support
this status and authorization to prosecute the action for the trust, complaint was verified by
“SVP” for CW, but not the trust which was the real party in interest, the allegations in the
complaint and affidavit which insufficient to prove standing)
Bank of New York Trust Co., N.A. v. Rodgers, 79 So.3d 108 (Fla. 3rd DCA 2012)
(involuntary dismissal of foreclosure based upon failure to prove status as owner and holder
reversed, the dismissal was directly contrary to an earlier order granting a motion to substitute
parties which was unopposed and no denial or defense was raised in borrower’s pleadings
concerning standing, also the record adequately and independently demonstrates the capacity of
the plaintiff to bring the case as the owner of the note “as established by an uncontradicted
chain of self-authenticating assignments.”)
Well reasoned dissent addresses the lack of knowledge of the plaintiff’s corporate represent who
the dissent deemed “clueless,” the UCC and Florida standing precedent.
“There is much “sand in the gears” of our property transfer system in these times.
However, we cannot bend the rules. A person seeking to enforce an instrument
conveying an interest in real property must demonstrate he has directly or indirectly
acquired ownership of the instrument. The majority errs by not insisting upon this
fundamental precept in this case.”
Reese v. Ellis, Painter, Ratterree & Adams, LLP, --- F.3d ----, 2012 WL 1500108
(11th Cir. 2012. May 01, 2012) (dismissal of an FDCPA claim against foreclosing law firm
reversed, the foreclosure remedy includes a request for possession of the property and a request
for payment, therefore, constitutes debt collection)
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