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Foreclosure Defense Florida


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.3 See Servedio
v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) (explaining that
plaintiff may submit evidence of assignment from payee to plaintiff or affidavit of
ownership to prove its status as holder of note); see also Khan v. Bank of Am., N.A., 58
So. 3d 927, 928 (Fla. 5th DCA 2011) (holding that bank failed to establish it had
standing to foreclose mortgage as matter of law where copy of note attached to
amended complaint bore endorsement assigning note to another bank); Verizzo, 28 So.
3d at 977 (finding genuine issue of fact as to whether bank owned and held note where
record did not reflect assignment or endorsement of note to bank). Cf. Isaac v.
Deutsche Bank Nat’l Trust Co., 36 Fla. L. Weekly D727 (Fla. 4th DCA Apr. 6, 2011)
(holding that assignee of promissory note and mortgage adequately established its
ownership of note and mortgage, as necessary to confer standing to bring foreclosure
action, where assignee filed original note and mortgage, along with allonge payable to
bearer, and affidavit from representative of successor in interest to previous assignee);
Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618 (Fla. 5th DCA 2010) (holding
that written assignment of promissory note and mortgage from nominee of original
lender to bank was sufficient to confer upon bank authority to foreclose mortgage, even though nominee had no beneficial interest in note and note was not endorsed by
original lender; mortgage gave nominee explicit power to enforce note by foreclosing
note and nominee assigned that right to bank).
Ms. Gee also asserts that the trial court improperly entered summary judgment
on the reestablishment and reformation claims when these claims were not raised in
U.S. Bank’s summary judgment motion. We agree. A motion for summary judgment
must ” state with particularity the grounds upon which it is based and the substantial
matters of law to be argued . . . .” Fla. R. Civ. P. 1.510(c). The burden to conclusively
establish the nonexistence of a disputed issue of material fact and entitlement to
judgment as a matter of law rests squarely with the movant. See Holl v. Talcott, 191 So.
2d 40, 43-44 (Fla. 1966); Bloch v. Berkshire Ins. Co., 585 So. 2d 1137, 1138 (Fla. 3d
DCA 1991). The purpose of this rule is ” to prevent “˜ambush’ by allowing the nonmoving
party to be prepared for the issues that will be argued at the summary judgment
hearing.” City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th
DCA 1995). ” It is reversible error to enter summary judgment on a ground not raised
with particularity in the motion.” Williams v. Bank of Am. Corp., 927 So. 2d 1091, 1093
(Fla. 4th DCA 2006).