Foreclosure Defense Florida

Foreclosure Case Killer- Motion to Strike Affidavit of Amounts Due and Owing.

Virtually every Motion for Summary Judgment in foreclosure cases is predicated on an “Affidavit of Amounts Due and Owing” introduced by the Plaintiff.   I’ve always been bothered by these affidavits because it just doesn’t seem right that one flimsy form document signed by a mindless “Robo Signer” should be all that is required to entitle any old Plaintiff to kick my neighbor out of her home, then chase her to the ends of the earth for the money claimed due in this one flimsy piece of paper. Some brilliant legal research by my colleague Michael Fuino (3L at Stetson Law) confirms that these affidavits are flawed and should not be permitted to be relied upon to grant summary judgment.

Perry Mason Goes to Foreclosure Court

The analysis and case law below provides all the legal support necessary to make an intelligent legal argument, but you can begin the challenge to the affidavit with a Perry Mason, “Well golly your honor, I’m afraid I can’t figger this here affidavit out at all….”Lookiee here it just says…Defendant owes Plaintiff all this here money.   Now exactly who is it these big shot banker boys and fancy lawyers want you to give all this money to?   The Plaintiff that first appeared in the case before they made their Motion to Substitute Party Plaintiff?   One of them companies mish mashed up there in that Plaintiff that I can’t even figger out who they are or where they are, Duetsche Bank?   The Ixis Trust, an FSB?

And now the real kicker.   “Your honor, by my count we got us here six Defendants.   There’s 1)Bob Smith, his wife 2)Mary Smith, some company called 3)MERS {and what is this MERS thing your honor? I mean how did they get here} 4. They Shady Acres Homeowner’s Association;   5) The City of Mayberry and; 6) Visa Credit Card Company.   Now I know they probably mean to tell you that Bob and Mary Smith are “the Defendant” that owes them the money, but the problem is “Mary Smith” don’t owe no one any money….lookee here, she didn’t sign any Note so they can’t claim she’s “the Defendant” that owes the money.

The point is I’ve never seen an affidavit that clearly identifies who they allege is obligated to pay the money claimed in the affidavit.   That’s a basic flaw that I’m never gonna let slide again.   And now to the legal argument.

Plaintiff Failed to Attach Documents Referred to in the Affidavit-Failure to Attach Documents Violates Fla. Stat. §90.901 (1989)

Florida Statue §90.901 (1989) states, in pertinent part, that ” [a]uthentication or identification of evidence is required as a condition precedent to its admissibility.”   The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit.   See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that ” affidavits”¦shall show affirmatively that the affiant is competent to testify to the matters stated therein”); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to attach certified copies of public records rendered affiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein.)

In most affidavits, the affiant affirmatively states that he is ” familiar with the books of account and have examined all books, records, and documents kept by SERVICER FOR PLAINTIFF concerning the transactions alleged in the Complaint.” Furthermore, the affiant avers that the ” Plaintiff or its assigns, is owed”¦$408,809.30.” Nevertheless, the affiants fail to attach any of the books, records or documents referred to in the Affidavit.   In addition, the affiants do not meet the definition of ” custodian,” which is ” a person or institution that has charge or custody (of”¦papers).”   See Black’s Law Dictionary, 8th ed. 2004, custodian.   By the affiants own admission ” [t]he books, records, and documents which [Spradling] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely.” Emphasis added.   Thus, the affiant has only examined the books, records, and documents which he refers to in the Affidavit while the true custodians of these documents are the employees or agents whose duty it is to keep the books accurately and completely.   In essence, the affiants aver to records which they did not submit nor could they testify for the authenticity of just as the affiant in Zoda did.

The affiant’s failure to attach the documents referred to in the Affidavit without being custodian of same is a violation of the authentication rule promulgated in Fla. Stat. §90.901 (1989), which renders them incompetent to testify to the matters stated therein as the Second District in Zoda held.   Therefore, the Affidavit should be struck in whole.

Failure to Attach Documents Violates Fla. R. Civ. Pro. 1.510(e)

Fla. R. Civ. Pro. 1.510(e) provides, in part, that ” [s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”   Failure to attach such papers is grounds for reversal of summary judgment decisions.  See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit.)

As previously discussed, the affiants refer to books, records, and documents kept by SERVICER which allegedly concerned the transaction referred to in the Complaint against the Defendant.   Nevertheless, as previously demonstrated, Affiant has not attached any of these books, records or documents.   This failure to do so is a violation of Fla. R. Civ. Pro. 1.510(e) and is grounds for a reversal of a summary judgment decision in favor of the Plaintiff.   Therefore, the Affidavit should be struck in whole.

Affidavit Was Not Based Upon Affiant’s Personal Knowledge

As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein.   See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that ” affidavits shall be made on personal knowledge”); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005); In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000).   Additionally, a corporate officer’s affidavit which merely states conclusions or opinion is not sufficient, even if it is based on personal knowledge.   Nour v. All State Supply Co., So. 2d 1204, 1205 (Fla. 1st DCA 1986).

The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 3d DCA 1995), noted that ” the purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.”   Id at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988)).   This opposition to hearsay evidence has deep roots in Florida common law.   In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capello’s affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence.   See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969).   Thus, there is ample precedent for striking affidavits in full which are not based upon the affiant’s personal knowledge.

Here, the entire Affidavit is hearsay evidence as affiant has absolutely no personal knowledge of the facts stated therein.   As an employee of Servicer, which purports to be the servicer of the loan, he has no knowledge of the underlying transaction between the Plaintiff and the Defendant.   Neither affiant nor servicer: (1) were engaged by the Plaintiff for the purpose of executing the underlying mortgage transaction with the Defendant; or (2) had any contact with the Defendant with respect to the underlying transaction between the Plaintiff and Defendant.   In addition, the Affidavit fails to set forth with any degree of specificity what duties Servicer performs for the Plaintiff, save for one line which states that Servicer ” is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”At best, servicer acted as a middleman of sorts, whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note.   Servicer is not the named Plaintiff in this case, nor does the Affidavit aver that either affiant or servicer is the agent of the Plaintiff.

Because affiant has no personal knowledge of the underlying transaction between the Plaintiff and Defendant, any statement he gives which references this underlying transaction (such as the fact that the Plaintiff is allegedly owed sums of monies in excess of $400,000) is, by its very nature, hearsay.   The Florida Rules of Evidence define hearsay as ” a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”   Fla. Stat. §90.801(1)(c) (2007).   Here Spradling is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than himself (namely, the Plaintiff) and is offering this as proof of the matter asserted (that Plaintiff is entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a judgment as a matter of law.)   At best, the only statements which Spradling can aver to are those which regard the transfer of funds between the various assignees of the Mortgage and Note.

The Plaintiff may argue that while affiants’s statements may be hearsay, they should nevertheless be admitted under the ” Records of Regularly Conducted Business Activity” exception.   Fla. Stat. §90.803(6) (2007).   This rule provides that notwithstanding the provision of §90.802 (which renders hearsay statements inadmissible), hearsay statements are not inadmissible, even though the declarant is available as a witness, if the statement is

[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.   Emphasis added.

There are, however, several problems with this argument.   To begin, and as previously demonstrated, no memorandums, reports, records, or data compilation have been offered by the Plaintiff.   Furthermore, the books, records, and documents referred to by affiant in the Affidavit (which, of course, were not attached) were kept by affiant, who cannot be a person with knowledge as affiant does not have any personal knowledge of underlying transaction between the Plaintiff and the Defendant.   Finally, affiant, as the source of this information, shows a lack of trustworthiness because affiant failed to attach the books, records, and documents to the Affidavit and because neither affiant nor servicer have knowledge of the underlying transaction between the Plaintiff and the Defendant.

Because affiant’s statements in the Affidavit are not based upon personal knowledge, they are inadmissible hearsay evidence.   As no hearsay exception applies to these statements, the Affidavit should be struck in whole.

Affidavit Included Impermissible Conclusions of Law Not Supported by Facts

An affidavit in support of a motion for summary judgment may not be based upon factual conclusions or opinions of law.   Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So. 2d 978, 979 (Fla. 2d DCA 2001).   Furthermore, an affidavit which states a legal conclusion should not be relied upon unless the affidavit also recites the facts which justify the conclusion.   Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003); Rever v. Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963).

Here, the Affidavit contained conclusions of law which were not supported by facts stated therein.   Specifically, affiant averred that the Plaintiff was entitled to enforce the Note and Mortgage and that the Plaintiff was entitled to a judgment as a matter of law, two legal conclusions, but did not support this conclusion with statements which referenced exactly who the Plaintiff was entitled to enforce the Note and Mortgage against.   In fact there is no mention of any of the parties in question save for one cryptic line in where affiant states that ” [s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and another which states ” I am familiar with the books of account”¦concerning the transactions alleged in the Complaint.” Nowhere in the Affidavit does affiant state that the Plaintiff is entitled to enforce the Note and Mortgage against the Defendant nor does affiant state that the Plaintiff is entitled to a judgment as a matter of law because the Defendant owes the Plaintiff money.   At best the Affidavit accuses someone of owing the Plaintiff $408,809.30 and that the Plaintiff should be able to enforce some Note and Mortgage against that particular someone.   By not clearly identifying the parties in question, affiant has not adequately supported his two legal conclusions.


4 Comments

  • Bill Mulloy says:

    Matt:
    Thanks for info. Have 20 or so cases where PL filed MSJ. Hearings starting to get scheduled. Just moved to Pinellas from Sarasota. Will take you to lunch.
    Bill Mulloy
    941-321-5043

  • Joe Lents says:

    Matt-

    Been in foreclosure over 7 years and still going. Great articles!! Just wondering if you know any thing about the banks foreclosing using “Equitable Subrogation” as the cause of action even though they claim to have lost the note and are unable to re-establish it. Thanks,
    Joe Lents from Boca

  • DENNIS SCHIAROLI says:

    SCOTT Ñ‚. TAYLOR.

    (Supreme Court of Florida. Feb. 6, 1912.)

    (Syllabus by the Court.)

    1. Mortgages ( § 209*)””assignment””PayMent то Original Mortgagor.

    A mortgage executed as security for the payment of a negotiable promissory note is a mere incident of and ancillary to such note. When it comes to the payment thereof, the rights of the parties thereto, as well as of third persons, are governed by the rules relating to negotiable paper; in other words, payment to any one other than the holder of the negotiable instrument is at the risk of the payer, and is binding upon the holder of the paper only where express or implied authority to receive such payment is established by the person making the same. Hence payment of a negotiable note secured by mortgage by the mortgagor or his grantee, where made to the original mortgagee who is not in possession of the note and mortgage, is not binding upon an assignee thereof before maturity who was in possession of the papers at the time of such payment, unless he had expressly or impliedly authorized such payment.

    [Ed. Note.””For other cases, see Mortgages, Cent. Dig. § § 865-S68; Dec. Dig. § 299.*]

    2. Bills And Notes ( § 427*)””Assignment Of Note””Payment то Original Payee.

    The duty of a maker of a negotiable note to see that the person to whom he pays it has it in his possession before making the payment is not affected by the fact that the note was on its face payable at the office of the person to whom he makes the payment.

    [Ed. Note.””For other cases, see Bills and Notes, Cent. Dig. § § 1233-1244; Dec. Dig. §

    3. Bills And Notes ( § 427*)””Assignment Of Note””Payment то Original Payee.

    The maker of a negotiable promissory note can satisfy it only by payment to the owner at the time of such payment, or to such owner’s authorized agent. If the recipient of the money is not actually authorized, the payment is ineffectual, unless induced by unambiguous direction from the owner, or justified by actual possession of the note. This rule applies generally to all negotiable paper, independently of the existence of any mortgage or other security.

    [Ed. Note,””For other cases, see Bills and Nojes, Cent. Dig. § § 1233-1244; Dec. Dig. I

    Appeal from Circuit Court, Escambia County; J. Emmett Wolfe, Judge.

    Bill by Emma E. Taylor against J. Conrad Scott and others. Decree for complainant, and defendant Scott appeals. Affirmed.

    R. P. Reese, for appellant Blount & Blount & Carter, for appellee.

    TAYLOR, J. The appellee Emma H. Tay: lor filed her bill In equity in the circuit court of Escambla county for foreclosure of mort

    gage against the appellant J. Conrad Scott and his wife, Alice K. Scott, and the Pensacola Home & Savings Association, a corporation.

    The bill alleged, In substance: That the said J. Conrad Scott, being Indebted to D. Hale Wilson In the sum of $400, executed and delivered to the said D. Hale Wilson his promissory note, whereby he did promise to pay to the order of the said D. Hale Wilson “¢?400, with Interest at the rate of 8 per cent, per annum from date until paid, interest payable quarter annually, said principal sum to be paid two years after the date of said note. By the terms of said note it was provided that It should be payable at the office of said D. Hale Wilson & Co., Pensacola, Fla., and that after default In payment, and the note should have been placed In the hands of an attorney for collection, the maker would pay an attorney’s fee of 5 per cent. If paid before suit, and 10 per cent, if paid after suit and all costs of collection. That said note is long since past due aud Is unpaid, and before its maturity for a valuable consideration the same was Indorsed and transferred to your oratrlx, Emma H. Taylor, by the said D. Hale Wilson, aud she Is now the owner and holder of same. That to secure the payment of the said note the said J. Conrad Scott and his wife, Alice K. Scott, on the same day, March 24, 1906, did execute and deliver to the said D. Hale Wilson their certain mortgage deed as security for the payment of the said note, thereby conveying to the said D. Hale Wilson, his heirs and assigns, the following real estate situated in the city of Pensacola, Escambla county, Fla., to wit: Lots 3, 4, and 5, in. block 170, New City tract, according to шар published by Thos. C. Watson in 1SS4.

    By the terms of said mortgage it was provided: That it was Intended to secure the payment of the promissory note above mentioned, and that the mortgagors would keep perfect and unimpaired the security thereby given, and that the said Indebtedness covered by said mortgage should become immediately due and said mortgage foreclosable for all sums secured thereby, if the said Indebtedness or any part thereof or the interest or any Installment thereof should not be paid according to the terms of the said note, and that, if foreclosure of said mortgage should be had or a suit to foreclose same be rightfully begun, the mortgagors would pay all costs and expenses of said suit, including an attorney’s fee to the attorney of the complainant foreclosing of $15, and 10 per cent, upon the amount decreed to the complainant, which costs and fees should be included in the lien of said mortgage and In the sum decreed upon foreclosure. That said mortgage was duly recorded on the 20th day of March, 1906, in the clerk’s office of Escambia county. That at the time of the Indorsement, transfer, and assignment of snld nromfsporv note to your oratrlx, Emma H. Taylor, the said D. Hale Wilson transferred and assigned me said mortgage to your oratrix and delivered to her said note and mortgage, and said note and mortgage have been In her possession ever since. That subsequent to the making and recording of said note and mortgage, to wit, on or about March 3, 1909. and long subsequent to the time when вяГЯ note and mortgage had been assigned and Indorsed to your oratrix by the said D. Hale Wilson, and at a time when the said note and mortgage were not in possession of said D. Hale Wilson, but were in possession of your oratrix, the said D. Hale Wilson executed what purported to be a cancellation of said mortgage, and procured same to be entered upon the mortgage cancellation records of Escambia county, Fia., but at the time of the execution of said cancellation the said D. Hale Wilson vras not the agent of your oratrix or authorized to act for her. That the amount due upon the said note and mortgage was reduced by a payment made on July 24, 1908, of $200, but that the balance with interest and attorney’s fees is still due and unpaid. That said cancellation was executed and placed upon record without the knowledge or consent of your oratrix, and without the payment to her of any sum whatever, and she never knew the same until during the summer of the year 1910, when her attention was called to the fact by some person who had examined the records, and found such cancellation apparently of record. The bill expressly waives oath to the answer of the defendant.

    The defendants J. Conrad Scott and his wife answered the bill, In which they admit the execution and delivery of the note and mortgage as alleged, but deny that the same is long past due and unpaid, and disclaim any knowledge of the indorsement and transfer of the same to the complainant, or that she is now the owner and holder of said note. The answer further alleges that the defendants on or about March 3, 1909, without any knowledge that the said note and mortgage had been assigned and indorsed to complainant by the said D. Hale Wilson, and without any knowledge that the said note and mortgage was not in the possession of said D. Hale Wilson, and without any knowledge that the said note and mortgage was in the possession of complainant as alleged, paid to said D. Hale Wilson the amount of the said mortgage, and secured a cancellation from the said D. Hale Wilson which was duly recorded upon the mortgage cancellation records of Escambia county. The answer disclaims any knowledge as to whether the said D. Hale Wilson was or not the agent of the complainant And the answer further alleges that the whole of said Indebtedness has been paid, and denies that any part of the origi

    due as alleged. The answer further alleges that until about the time of the filing of complainant’s bill and long after same had been paid they had no knowledge whatever that the said note and mortgage had been sold and transferred by the said D. Hale Wilson to complainant as alleged in her bill, and that such knowledge was acquired after the said note and mortgage had been fully paid and satisfied as hereinbefore alleged.

    The answer further asserts that, by reason of complainant’s failure to notify defeudants of said acquisition and ownership of the said note and mortgage as alleged, complainant constituted said D. Hale Wilson as her agent, and the payments so made by defendant on account of the said note and mortgage to the said D. Hale Wilson ae aforesaid were made to complainant’s agent for the use and benefit of complainant. The answer further asserts that the said notecontained the statement that “this note secured by mortgage,” and that the note and the mortgage were part and parcel of but one and the same transaction, and that by reason of the conditions contained in the mortgage as to the mortgagor keeping the premises insured for the benefit of the mortgagee, and keeping the taxes on the property paid up, and that, In default In the mortgagor in these respects, the mortgagee might pay the same upon which the mortgage Hen should extend to and cover all such payments for insurance and taxes, and that the said mortgage and all sums secured to be paid thereby should at once become due and foreclosable in the event of default in the payment of any sum due thereon or in the payment of any Installment of interest when due, and the covenant in said mortgage to pay attorney’s fees of $15 and 10 per cent, of the amount duo for principal and interest, all rendered and made the said note nonnegotiable, and that the same was merely assigned by said D. Hale Wilson to complainant, who took the same subject to all equities existing between the said Wilson and defendants, and, because of the assignment of said nonnegotiable note and mortgage to complainant by said Wilson, it became and was the duty of complainant to give the defendants due notice of such assignment, that defendants might make their future payments to complainant. The cause was heard before the chancellor on the bill, and exhibits of the original mortgage and note, and the answer of the defendants, and a final decree rendered in favor of the complainant and against the defendants foreclosing the said mortgage for the total sum of $390.06, inclusive of interest and attorney’s fees, and adjudging the mortgaged property to be sold to pay the same. From this final decree, the defendant J. Conrad Scott took his appeal* to this court, and assigns the said decree to be error.

    the payment of a negotiable promissory note Is a mere incident of and ancillary to such note. When it conies to the payment thereof, the rights of the parties thereto, as well as of third persons, are governed by the rules relating to negotiable paper; in other words, payment to any one other than the holder of the negotiable instrument is at the risk of the payer, and is binding upon the holder of the paper only where express or implied authority to receive such payment is established by the person making the same. Ilence payment of a negotiable note secured by mortgage by the mortgagor or his grantee, where made to the original mortgagee who is not In possession of the note and mortgage, is not binding upon an assignee thereof before maturity who was In possession of the papers at the time of payment, unless he had expressly or impliedly authorized such payment. Smith v. First Nat. Bank of Cadiz, Ohio, 23 Okl. 411, 104 Рас. 1080, 29 L. R. Л. (N. S.) 676, and authorities cited in notes, 138 Am. St. Rep. 850.

    The duty of a maker of a negotiable note to see that the person to whom he pays it has It In his possession before making the payment is not affected by the fact that the note was on its face made payable at the office of the person to whom he makes the payment Powers v. Woolfolk, 132 Mo. App. 354, 111 S. W. 1187; Hoffmaster v. Black, 78 Ohio St. 1, 84 N. E. 423, 21 L. R. A. (N. S.) 62, 125 Am. St. Rep. 679, 14 Ann. Cas. 877; Baxter v. Little, 6 Mete. (Mass.) 7, 39 Am. Dee. 707.

    The maker of a negotiable promissory note can satisfy it only by payment to the owner at the time of such payment, or to such owner’s authorized agent If the recipient of the money is not actually authorized, the payment is ineffectual, unless Induced by unambiguous direction from the owner or justified by actual possession of the note. This rule applies generally to all negotiable paper, Independently of the existence of any mortgage or other security. Marling v. Nonimensen, 127 Wis. 363, 106 N. W. 844, 5 L. R. A. (N. S.) 412, 115 Am. St. Rep. 1017, 7 Ann. Oas. 364 ; Baumgartner v. Peterson. 93 Iowa, 572, 62 N. W. 27 ; Burhans v. Ilutcheson, 25 Kan. 625, 37 Am. Rep. 274; Birket v. El ward, €8 Kan. 295, 74 Рас. 1100, 64 L. R. A. 568, 104 Am. St. Rep. 405, 1 Ann. Cas. 272; Smith v. Lawson, 18 V. Va. 212, 41 Am. Rep. 688 ; Carpenter v. Longan, 16 Wall. 271, 21 L. Ed. 313; Swift v. Bank of Washington, 114 Fed. 643, 52 C. O. A. 339.

    Under the rules of law governing negotiable Instruments as announced In the foregoing authorities, we think the decree of the court below appealed from in this case was proper.

    “¢ The defendant knew that he had made and delivered to D. Hale Wilson a negotiable promissory note that was transferable by

    indorsement to another, and yet, without Inquiring as to such transfer and without production of the note and mortgage, he pays the amount due upon such note to Wilson, the original payee, when such note had been transferred to the complainant and was then held and owned by her, and without any delegation of authority from her to said Wilson either express or implied to receive such payment Under these circumstances, such payment to Wilson was unauthorized, and the complainant Is not affected thereby. There is no merit in the contention that the conditions expressed in the mortgage rendered the note nonnegotiable. Neither Is there anything disclosed by the circumstances set forth in the pleadings from which It can legally be Implied that Wilson was authorized to act as agent for the complainant in receiving payment of this note from the defendant

    Finding no error, the decree appealed from Is hereby affirmed at the costs of appellant

    WHITFIEbD, C. J., and SHACKLEFORD, COCKRELL, and HOCKER, JJ., concur.

    (вЗ Fla. 827)

    If you pay the wrong mortgage company for your house and they are not the original holder of the note (guess what) your out the money. This is even a better reason to fight!

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