FELTUS v. US Bank N.A. | FL 2DCA "Affidavit of Indebtedness Fail, Genuine Issue of Material Fact of Who Owned or Held the Note"

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FELTUS v. US Bank N.A. | FL 2DCA “Affidavit of Indebtedness Fail, Genuine Issue of Material Fact of Who Owned or Held the Note”

FELTUS v. US Bank N.A. | FL 2DCA “Affidavit of Indebtedness Fail, Genuine Issue of Material Fact of Who Owned or Held the Note”

JULIA FELTUS, Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION, as TRUSTEE of MASTR ADJUSTABLE RATE MORTGAGES TRUST 2007-3, Appellee.

Case No. 2D10-3727.

District Court of Appeal of Florida, Second District

The properly filed pleadings before the court when it heard U.S. Bank’s
motion for summary judgment were a complaint seeking to reestablish a lost note to
which was attached a copy of a note made payable to Countrywide, N.A., Feltus’s
answer and affirmative defenses alleging that the note attached to the complaint
contradicts the allegation of the complaint that U.S. Bank is the owner of the note, a
motion for summary judgment alleging a lost note of which U.S. Bank is the owner, and
an affidavit of indebtedness alleging that U.S. Bank was the owner and holder of the
note described in the complaint. The endorsed note that U.S. Bank claimed was now in
its possession was not properly before the court at the summary judgment hearing
because U.S. Bank never properly amended its complaint.2 In addition, the complaint
failed to allege that U.S. Bank “was entitled to enforce the instrument when loss of
possession occurred, or has directly or indirectly acquired ownership of the instrument
from a person who was entitled to enforce the instrument when loss of possession
occurred.” § 673.3091(a). The affidavit of indebtedness provided no assistance in this
regard because the affiant did not assert any personal knowledge of how U.S. Bank
would have come to own or hold the note. See Shafran v. Parrish, 787 So. 2d 177, 179
(Fla. 2d DCA 2001) (“When affidavits are filed to establish the factual basis of the
motion [for summary judgment], they must be made on personal knowledge,
demonstrate the affiant’s competency to testify, and be otherwise admissible in
evidence.”).

The trial court erred in entering final judgment of foreclosure because the
documents before it did not establish conclusively that there was no genuine issue of
material fact and that U.S. Bank was entitled to foreclose Feltus’s mortgage as a matter
of law. Accordingly, we reverse and remand for further proceedings consistent with this
opinion.

[ipaper docId=79923543 access_key=key-o2c2szisin5tanoviek height=600 width=600 /]

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One Response to “FELTUS v. US Bank N.A. | FL 2DCA “Affidavit of Indebtedness Fail, Genuine Issue of Material Fact of Who Owned or Held the Note””

  1. Mr. Harris says:

    Good evening; I am in the middle of this mess also and desparately need any information on foreclosures in Oregon. I also have a problem judge that does not like Pro Se litigants at all. He has denied, ruled against, resisted everything I have submitted to the court for over two years. There was a hearing (if you can call it that) and less than 5 seconds and receiving a document he had never read and could not find in rebuttle to the banks motion for summary judgment he threw a temper tantrum, he ruled in favor of the bankand stormed out of the room. I had over 3 reams of papers to present and never got to say one word in defense. I have notified the Oregon State BAR of my displeasure and informed them of my motion for the judge to recuse and told them it an open letter now. A copy of this motion is available for the asking. Make subject of email “problem judge” 2southforty@gmail.com and I need this to go viral in the Internet – Please.

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