Deutsche Bank filed a mortgage foreclosure action against Virgil and
Lissette Bennett, alleging that it was “the current owner of or has the
right to enforce the Note and Mortgage.” With the complaint, Deutsche
Bank filed copies of the note with two allonges and the mortgage. The
first allonge contained an undated endorsement from the original lender
(H&R Block) to Option One Mortgage. The second allonge contained an
undated endorsement in blank from Option One Mortgage. Both
allonges were signed by the same individual, Elizabeth Causseaux.
As to the issues that were properly preserved for appeal, this court
reviews the trial court’s entry of summary judgment using the de novo
standard of review. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.
3d 170, 172 (Fla. 4th DCA 2012). Summary judgment is appropriate
when there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. This court must
examine the record in the light most favorable to the Bennetts, the nonmoving
party. Id.
“A crucial element in any mortgage foreclosure proceeding is that the
party seeking foreclosure must demonstrate that it has standing to
foreclose.” Rigby v. Wells Fargo Bank, 84 So. 3d 1195, 1196 (Fla. 4th
DCA 2012) (quoting McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.
3d 170, 173 (Fla. 4th DCA 2012)). We find that Deutsche Bank failed to
prove the absence of any genuine issue of material fact regarding the
authority of the person making the endorsements on the two allonges
attached to the note.
Deutsche Bank relies on this court’s opinion in Riggs v. Aurora Loan
Services, LLC, 36 So. 3d 932 (Fla. 4th DCA 2010), holding that an
endorsement o n a note was self-authenticating pursuant to section
90.902(8), Florida Statutes (2008). In Riggs, this court affirmed the final
summary judgment of foreclosure relying on the statutory presumption
in section 673.3081(1), Florida Statutes (2008), which provides:
In an action with respect to an instrument, the authenticity
of, and authority to make, each signature on the instrument
is admitted unless specifically denied in the pleadings. If the
validity of a signature is denied in the pleadings, the burden
of establishing validity is on the person claiming validity, but
the signature is presumed to be authentic and authorized
unless the action is to enforce the liability of the purported
signer and the signer is dead or incompetent at the time of
trial of the issue of validity of the signature.
§ 673.3081(1), Fla. Stat. (2008). In Riggs, there was no issue of
authentication, and the court found that, “in an action with respect to an
instrument, the authenticity of, a n d th e authority to make, each
signature on the instrument is admitted unless specifically denied in the
pleadings.” Id. at 933 (quoting § 673.3081(1), Fla. Stat. (2008)).
In this case, the Bennetts put the validity of the signatures on both
allonges at issue. In their amended answer and affirmative defenses, the
Bennetts specifically allege that Elizabeth Causseaux was not an
authorized agent of one or both entities. Appellants rely on the inference
that the signatures were not authorized because they were made by the
same person on behalf of two separate entities. Construing this evidence
and resolving all reasonable inferences in the light most favorable to the
non-moving party, the Bennetts, this pleading was sufficient to put the
authenticity of the signatures at issue, thus creating a genuine issue of
material fact. Because a genuine issue of material fact exists, summary
judgment was improper.
HRB=OO=Sand Canyon … most HRB loans were table funded by Bank of America.
The endorsements on the allonges are also likely invalid because they are undated and it cannot be determined if they were executed in the correct order …
Also Option One Mortgage Corp. is NEVER the depositor , all the PSA’s I’ve seen from them specify Option One Mortgage Acceptance Corp as the “depositor”…
I’m willing to bet $100 that the endorsing party is not properly identified on the allonge with his/her title , company name and phone number … more than likely it is a LPS employee or a secretary at the bankster/fraudster lawfirm.
For $64,000.00 and the win , SHOW ME THE MONEY!!! prove that he transfer took pace by showing the receipt.
Please do not give readers delusions of grandeur. This case law does NOT mean the borrower automatically wins all of the time by any stretch of the word.
The burden at summary judgment is that Plaintiff shows that there is “no genuine issue of material fact” in the case and judgment should be entered. This is a HIGH burden, specifically when challenging the date of the assignment under the McLean vs. JPMorgan Chase decision.
This DOES NOT mean that it is an absolute defense to foreclosure. If this case cited goes to trial on remand, all the bank has to do is bring some lackey in to say the endorsement was on the note when the case was filed. JUDGMENT FOR THE BANK. The lackey will lie on the stand no matter what he/she really knows/saw and the defense has no evidence to contradict that 99% of the time (absent the rare occasion where the assignor is in bankruptcy, seized by the FDIC, or something else funny happens that is identifiable)
Please do not blow small decisions out of proportion of what they really stand for and confuse the public; that is a disservice. This opinion is no different than the 20 before it with the same ruling, nor the proposition of McLean almost 2 years ago now.
The “endorsement” was not on the note , this is about the mystery allonges …
Absolutely it is not an “automatic win” ,, the judge will likely ignore the complaint , Matt never said it was an automatic win ,, just that it created a “genuine issue of material fact” ,,, which is what is needed to defeat a MSJ or get you an appeal if it is ignored.
My case is VERY similar and the “bank lackey” couldn’t say when the allonge was created , he also stated that it wasn’t in his “screens” (read LPS imaging system) when he first reviewed and confirmed the case… cementing that it is a forgery ordered by the plaintiffs attorney to be created. Also as an Allonge the fact that it was never physically attached to the note makes it “wild” and totally invalid…