Foreclosure Defense Florida

BOMBSHELL- GEE V. US BANK great job TEAM ICE- (AGAIN!)

By September 30, 20114 Comments

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).

FULL OPINION BELOW

gee

 

4 Comments

  • It would also be “inequitable” for someone to shoot their own foot off with their own gun. But this is what the banks have done – TO THEMSELVES.

    Now they also want to collect the insurance too?

    Let them limp for the rest of their numbered days with just one foot. Hopefully, free market economics will kick in without government handouts of taxpayer money to crooked bankers. We must end corporate welfare. Corporations will have to rely on integrity, product/service consideration, consumer confidence, and market forces of supply and demand, not government aiding and abetting.

    Let us all see and support the rise of Credit Unions, small community based banks, and State banks.

    Eff Wall Street. What have they ever brought to the table besides misery to the masses??? (ie, Depression 1 and Depression 2.0)

    BOYCOTT THE BANKS. MOVE YOUR MONEY!!!

    (RUN MATT, RUN!!!! WE SUPPORT YOU!!!)

  • neidermeyer says:

    Once again the dynamic duo of Option One and AHMSI comes through snatching defeat from the jaws of victory by being the two most incompetant business entities on the planet… of the two I’d say AHMSI is the worst … I don’t think they have EVER properly documented any sale … probably because they only bought collection rights …

  • Ginnifer Gee says:

    Team Ice is FABULOUS!!!! The Ice Folks are so kind, caring and dedicated to helping people, not just making money or advancing themselves, although, they absolutely deserve a dump truck full of 100 dollar bills. Thank you, again, Team Ice for advancing the cause of innocent homeowners taken advantage of by the greedy corporate s! I had a steady, good paying job but was still forced into foreclosure by the servicer, American Home Mort. Servicing. They all deserve what they get! Score one for the Good Guys!! G. Gee

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