GONZALEZ v. DEUTSCHE BANK | FL 2nd DCA " Lost Note, Found Note, Stamp and Handwritten notation transferring the note from American Home Mortgage to Deutsche Bank is not dated"

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GONZALEZ v. DEUTSCHE BANK | FL 2nd DCA “Lost Note, Found Note, Stamp and Handwritten notation transferring the note from AHM to DB is not dated”

GONZALEZ v. DEUTSCHE BANK | FL 2nd DCA “Lost Note, Found Note, Stamp and Handwritten notation transferring the note from AHM to DB is not dated”

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

ELENA GONZALEZ,
Appellant,

v.

DEUTSCHE BANK NATIONAL TRUST
COMPANY AS INDENTURE TRUSTEE
FOR AMERICAN HOME MORTGAGE
INVESTMENT TRUST 2006-1,
MORTGAGE-BACKED NOTES, SERIES
2006-1; MANUEL GONZALEZ; CITY OF
CAPE CORAL, FLORIDA; BOARD OF
COUNTY COMMISSIONERS OF LEE
COUNTY, FLORIDA; UNKNOWN TENANT
# 1; UNKNOWN TENANT # 2; UNKNOWN
TENANT # 3; UNKNOWN TENANT # 4,
Appellees.

Opinion filed April 20, 2012.

Appeal from the Circuit Court for Lee
County; Hugh E. Starnes, Judge.
Michael C. Tice, Fort Myers, for Appellant.
Mariya Weekes of Robertson, Anschutz &
Schneid, P.L., Boca Raton (Debra Rescigno
and Kevin Garbowit substituted as
counsels of record), for Appellee Deutsche
Bank National Trust Company.
No appearance for remaining Appellees.
DAVIS, Judge.

Elena Gonzalez challenges the trial court’s final order denying her motion
for relief from judgment in which she challenged the final summary judgment of
mortgage foreclosure that the court had entered against her and in favor of Deutsche
Bank National Trust Company.1 Because a genuine issue of material fact remains with
regard to when Deutsche Bank took possession of the note, we reverse and remand for
further proceedings.

On January 16, 2009, Deutsche Bank filed a two-count complaint against
Gonzalez seeking to foreclose her mortgage and to reestablish the note. In its
complaint, Deutsche Bank specifically alleged that “[t]he subject promissory note has
been lost or destroyed and is not in the custody or control of the Plaintiff who is the
owner and holder of the subject Note and mortgage and its whereabouts cannot be
determined.”

However, on March 27, 2009, Deutsche Bank filed a Notice of Filing
Original Note and Original Mortgage, attaching those documents and voluntarily
dismissing count two of its complaint to reestablish the note. The last page of the
attached note is a signature page signed by Gonzalez as the borrower. No other
signatures appear on the page, but it is stamped “pay to the order of ___________
without recourse by: American Home Mortgage Acceptance, Inc. Rosa Montella Asst.
Secretary.” “Deutsche Bank National Trust Company CS Indenture Trustee” is
handwritten in the blank, and it appears that Rosa Montella has initialed the notation.
Neither is dated, however.

On August 4, 2009, Deutsche Bank filed a notice of filing the assignment
of mortgage by which Mortgage Electronic Registration Systems, Inc., assigned the
instant mortgage to Deutsche Bank effective December 27, 2009—nearly a year after
the foreclosure complaint was filed.

Gonzalez then filed her answer and affirmative defenses, alleging among
other things that “the complaint fails to adequately show the chain of the title
demonstrating that Plaintiff is in fact the real party in interest with standing to bring this
action.”

Deutsche Bank ultimately moved for final summary judgment of
foreclosure, and in opposition, Gonzalez argued that summary judgment is improper
because the pleadings raise a question of material fact as to whether Deutsche Bank
was the real party in interest at the time of the filing of the foreclosure action.

Following a hearing,2 the trial court entered its final judgment of mortgage
foreclosure. Gonzalez then filed a motion entitled “Motion from Relief From Final
Judgment,” in which she cited Florida Rules of Civil Procedure 1.540 and 1.530. With
respect to rule 1.530, Gonzalez argued that she was entitled to rehearing because

the exhibits attached to Plaintiff’s complaint and filed in
support of its motion for summary judgment are inconsistent
with Plaintiff’s allegations as to ownership of the subject
promissory note and mortgage, Plaintiff has failed to
establish itself as the real party in interest and has failed to
state a cause of action. When exhibits are inconsistent with
the plaintiff’s allegations of material fact as to whom the real
party in interest is, such allegations cancel each other out.
The trial court denied Gonzalez’s motion.

On appeal, Gonzalez argues that the trial court erred because the
December 27, 2009, mortgage assignment that Deutsche Bank relied on to establish its
standing to maintain the foreclosure action was insufficient in that it did not take effect
until well after the foreclosure action was initiated. She also argues that a genuine
issue of material fact remains as to when the special endorsement assigning the note to
Deutsche Bank was signed.

Deutsche Bank responds that the mortgage assignment is irrelevant and
that when it filed the original promissory note on March 27, 2009, it perfected its status
as the real party in interest because the last page of the note included an assignment of
the note from American Home Mortgage Acceptance to Deutsche Bank.

We start with the basic premise that “[t]he holder of a note has standing to
seek enforcement of the note.” Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d
151, 153 (Fla. 2d DCA 2007). And we do agree with Deutsche Bank that the fact that
the assignment of the mortgage is not effective until December 27, 2009, is irrelevant
and that the true issue is whether Deutsche Bank is the holder of the note. See WM
Specialty Mortg., LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004) (” ‘If the
note or other debt secured by a mortgage [is] transferred without any formal assignment
of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to
the debt, unless there [is] some plain and clear agreement to the contrary . . . .’ “
(quoting Johns v. Gillian, 184 So. 140, 143 (Fla. 1938))).

However, we also agree with Gonzalez that the trial court erred in granting
Deutsche Bank’s motion for summary judgment because a genuine issue of material
fact existed.

The standard of review on a summary judgment is de
novo.[3] Estate of Githens ex rel. Seaman v. Bon Secours-
Maria Manor Nursing Care Ctr., 928 So. 2d 1272, 1274 (Fla.
2d DCA 2006). . . . The movant has the burden to prove the
absence of a genuine issue of material fact, and “this court
must view ‘every possible inference in favor of the party
against whom summary judgment has been entered.’ ” Id.
(quoting Maynard v. Household Fin. Corp. III, 861 So. 2d
1204, 1206 (Fla. 2d DCA 2003)). And, “if the record raises
even the slightest doubt that an issue might exist, that doubt
must be resolved against the moving party and summary
judgment must be denied.” Nard, Inc. v. DeVito Contracting
& Supply, Inc., 769 So. 2d 1138, 1140 (Fla. 2d DCA 2000).
Furthermore, . . . [a plaintiff seeking summary judgment]
“must either factually refute the affirmative defenses or
establish that they are legally insufficient.” Konsulian v.
Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA
2011).
Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1116-17 (Fla. 2d DCA 2011).

Here, a genuine issue of material fact remains as to whether the note was
assigned prior to Deutsche Bank instituting the foreclosure suit. Gonzalez placed the
standing issue before the trial court by raising it in her affirmative defenses. Deutsche
Bank then filed with the trial court the original note with the stamped assignment on the
last page. The first page of the note does indicate a date of October 5, 2005, and
presumably that is the date on which Gonzalez signed the note and closed on her
property. The problem is that the additional stamp and handwritten notation transferring
the note from American Home Mortgage to Deutsche Bank is not dated. Accordingly,
Deutsche Bank failed to establish its standing by showing that it possessed the note
when it filed the lawsuit. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg.
Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) (“Because J.P. Morgan did
not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to
maintain the foreclosure action.”). As a result, Deutsche Bank has not refuted
Gonzalez’s affirmative defense, and a genuine issue of material fact exists that should
have precluded the entry of summary judgment.

Accordingly we must reverse and remand for further proceedings.

SILBERMAN, C.J., and CASANUEVA, J., Concur.

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