Tuesday, November 23, 2010

FYI: FL App Ct Reverses Summary Judgment in Foreclosure Action, Citing Failure to File Original Note and Mortgage Prior to Judgment

The District Court of Appeal for the State of Florida, 4th District, reversed a trial court's grant of final summary judgment of foreclosure in favor of an mortgagee that did not file a copy of the original note and mortgage with the court prior to the entry of judgment.  

A copy of the opinion is available on line at:  http://www.4dca.org/opinions/Oct%202010/10-27-10/4D10-1898.op.pdf

U.S. Bank, N.A., as Trustee, filed an unverified complaint against Appellant Guiseppe Servedio ("Servedio') seeking to both foreclose a mortgage, and to reestablish a lost promissory note.  The copy of the mortgage attached to the complaint identified Bankers Express Mortgage ("Bankers Express"), Inc. as both the lender and mortgagee.  The attached adjustable rate rider and prepayment penalty rider also identified Bankers Express as the lender and mortgagee.

Servedio answered Trustee's complaint denying all allegations therein, and asserting affirmative defenses alleging that Trustee was not "in privity" with the lender and mortgagee, and lacked standing to foreclose.

In support of its motion for summary judgment, Trustee produced an affidavit signed by a representative of the loan servicing company, which listed the total amount due on the mortgage, but did not state that Trustee was an owner or holder of either instrument, and contained no supporting documentary evidence. 

The Appellate Court's opinion noted that Trustee failed to present the trial court with a copy of the original note and an affidavit of ownership at the summary judgment hearing.  Trustee conceded that these documents were not filed with the court until several days later.  Due to this fact, the record on appeal did not contain these documents or an evidence of the assignment of the note. 

Because these documents were not part of the record at the time summary judgment was granted, the Appellate Court stated it could not determine whether the documents had been considered by the trial court.  The Court held that in the absence of a stipulation, or the mortgagee's seeking "relief in the trial court to recreate the record," the court could not "rely on the representations of counsel alone."

Furthermore, the Appellate Court held that Trustee's failure to authenticate the note and mortgage, and to file and serve the instruments more than twenty days before the summary judgment hearing, as required by Florida law, also necessitated reversal of the trial court's grant of summary judgment in favor of Trustee. 

The court noted that its opinion did not preclude Trustee from re-filing for summary judgment with the necessary documents.

Let me know if you have any questions.  Thanks.


Ralph T. Wutscher

Kahrl Wutscher LLP

The Loop Center Building

105 W. Madison Street, Suite 2100
Chicago, Illinois  60602
Direct:  (312) 551-9320 

Fax:  (866) 581-9302
Mobile:  (312) 493-0874

Email:  RWutscher@kw-llp.com



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