In a new and interesting decision, a Florida Appellate Court has pulled together various strands of settled Florida Law this Halloween.
In Florida, the Plaintiff in a Foreclosure Lawsuit must present evidence, either in proper support of its Motion for Summary Judgment or at the Trial of the case, that it owns and holds the note and mortgage in question. Its proof must consist either of a "tender [of] the original promissory note," or of proof that will successfully reestablish a lost note as provided by the Florida Statutes.
In addition, if the note does not identify the Plaintiff as the party to be paid on it, then it must either "bear a special indorsement" naming the Plaintiff, or a blank indorsement. The Plaintiff may, in the alternative, submit proper evidence of either (1) the true payee's assignment to the Plaintiff of proceeds payable under the note, or (2) "an affidavit of ownership," in order to prove that it, the Plaintiff, holds the note.
This is pretty basic. These settled rules of Florida Law were recently applied in time for Halloween in the case of Servedio v. US Bank Nat'l Ass'n, Download Servedio v. US Bank National Association (Fla. 4th DCA Case No. 4D10.1898, Opinon Filed October 27, 2010)(PUBLIC ACCESS; STATED NOT FINAL), also published as 35 Fla. L.W. D2368a (Fla. 4th DCA October 27, 2010)(Subscription required to access Florida Law Weekly). After applying these rules of Law, the Court in this Halloween treat (no tricks, please) held on the facts of record in that particular matter:
The record on appeal does not contain the original note, evidence of an assignment of the mortgage and note to appellee, or an affidavit of ownership by appellee. Appellee filed no other admissible “pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials” to support its contention that it owns and holds the note and mortgage. Fla. R. Civ. P. 1.510(c). “[I]t is apodictic that summary judgments may not be granted . . . absent the existence” of admissible evidence in the record. TRG-Brickell Point NE, Ltd v. Wajsblat, 34 So. 3d 53, 55 (Fla. 3d DCA 2010). Without evidence demonstrating appellee's status as holder and owner of the note and mortgage, genuine issues of material fact remain, and summary judgment was improper.
[Emphasis added electronically on Halloween.}
The devastatingly bad effects on Mortgage Insurance and on Title Insurance, of shorting these established Rules of Law, are explored in continuing posts over the next several days.
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