Green v. JPMorgan Chase | Florida 5th DCA - Within the original note, the indorsement in blank did not establish that the Bank had the right to enforce the note ...Affidavit did not establish that the Bank held the note

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Green v. JPMorgan Chase | Florida 5th DCA – Within the original note, the indorsement in blank did not establish that the Bank had the right to enforce the note, undated

Green v. JPMorgan Chase | Florida 5th DCA – Within the original note, the indorsement in blank did not establish that the Bank had the right to enforce the note, undated

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2013

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

CHARLES R. GREEN,
Appellant,

v.        Case No. 5D12-870

JPMORGAN CHASE BANK, N.A.,
Appellee.
________________________________/
Opinion filed April 5, 2013

Appeal from the Circuit Court
for Brevard County,

George W. Maxwell III, Judge.

Charles R. Green, Indialantic, pro se.

Kimberly S. Mello, of Greenberg Traurig,
P.A., Tampa, and Michele L. Stocker of
Greenberg Traurig, Ft. Lauderdale, for
Appellee.

PALMER, J.

In this mortgage foreclosure matter, Charles R. Green appeals the final judgment
of foreclosure entered in favor of JPMorgan Chase Bank, N.A. (Bank). Determining that
the trial court erred in denying Green’s motion to add a counterclaim and in granting the
Bank’s motion for summary judgment, we reverse.

The Bank filed a mortgage foreclosure complaint against Green. Green filed an
answer raising multiple affirmative defenses. He later filed a motion seeking leave of
court to file a counterclaim containing several counts. The Bank filed a motion for
summary judgment. Both motions were heard together, after which the trial court denied
Green’s motion to add a counterclaim, granted the Bank’s motion for summary judgment,
and entered a final judgment of foreclosure.

On appeal, Green argues that the trial court erred in denying his motion to add a
counterclaim and in granting the Bank’s motion for summary judgment when the Bank
had not refuted all of his affirmative defenses. We agree.

First, the court erred in denying Green’s motion to add a counterclaim. A trial
court’s denial of a motion to add a counterclaim is reviewed for abuse of discretion. See
Cedar Mountain Estates, LLC v. Loan One, LLC, 4 So. 3d 15, 16 (Fla. 5th DCA 2009).
All doubts must be resolved in favor of allowing amendment, and “[p]ublic policy . . .
favors the liberal granting of leave to amend where the failure to do so will likely prevent
the cause from being resolved on its merits.” Crown v. Chase Home Fin., 41 So. 3d 978,
980 (Fla. 5th DCA 2010). Consequently, “[r]efusal to allow amendment of a pleading
constitutes an abuse of discretion unless it clearly appears that allowing the amendment
would prejudice the opposing party; the privilege to amend has been abused; or
amendment would be futile.” Sonny Boy, L.L.C. v. Asnani, 879 So. 2d 25, 28 (Fla. 5th
DCA 2004).

One count of Green’s proposed counterclaim, and the only count he addresses
on appeal, alleged that the Bank violated the federal Real Estate Settlement Procedures
Act (RESPA) by failing to notify him of a change in the servicer of his loan.1 Specifically,
the count alleged the following. Green obtained a loan from Washington Mutual Bank,
FA (WaMu). Through this transaction, WaMu may have acquired and retained a
servicing interest in the loan. The Bank claimed to possess servicing rights in the loan.
However, the Bank failed to notify Green that it was the new servicer within 30 days of
assignment of servicing, as required by RESPA. As a result, the Bank denied Green a
good-faith opportunity to determine who the new servicer was, preventing him from
making mortgage payments to avoid foreclosure.

The Bank responded that this count would be futile because Green could not
state a valid claim, since he made eight monthly payments after servicing was
transferred to the Bank. In support, the Bank relied on (1) a Purchase and Assumption
Agreement showing that the Bank bought WaMu and its assets out of receivership on
September 25, 2008; (2) a Customer Account Activity Statement showing that, after
September 25, 2008, Green made at least 12 payments on the account; and (3) an
affidavit of amounts due and owing. In addition, the Bank’s counsel represented to the
court that the Bank regularly contacted Green by mail and phone to explore home
retention options. In support, the Bank relied on (1) a letter from the Bank to Green, and
(2) a Consolidated Notes Log describing various phone interactions between the Bank
and Green after he defaulted on the loan. Green objected that the Bank presented no
sworn testimony. Green represented that he was never aware that the Bank was
involved until he was served with the complaint, and he denied that he had made any
payments to the Bank.

The Bank failed to conclusively show that this count of Green’s proposed
counterclaim would be futile. The only evidence submitted by the Bank was the affidavit
of amounts due and owing.2 That affidavit did not show specific payments by Green or
the dates on which they were made. As such, the trial court erred in denying his motion
as to this count.

Second, the trial court erred in granting the Bank’s motion for summary judgment
because the Bank failed to refute Green’s affirmative defense of lack of standing. This
court reviews de novo an order granting summary judgment. Major League Baseball v.
Morsani, 790 So. 2d 1071, 1074 (Fla. 2001). To establish standing to foreclose for
purposes of summary judgment, the plaintiff must show that it acquired the right to
enforce the note before it filed suit. See Gonzalez v. Deutsche Bank Nat’l Trust Co., 95
So. 3d 251, 253-54 (Fla. 2d DCA 2012); Venture Holdings & Acquisitions Group, LLC v.
A.I.M. Funding Group, LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011).

The Bank’s motion for summary judgment asserted that the Bank had standing as
the holder of the note, as evidenced by its earlier filing of the original promissory note.
The note contained an indorsement in blank by WaMu.3 On appeal, the Bank adds that
its standing was supported by the Purchase and Assumption Agreement, which showed
that the Bank bought all of WaMu’s assets before the Bank filed suit. The Bank also
asserts that it filed an affidavit stating that it was the holder of the note.

Within the original note, the indorsement in blank did not establish that the Bank
had the right to enforce the note when it filed suit, because the indorsement was
undated. See Gonzalez, 95 So. 3d 251. Moreover, the Bank’s standing also was not
established by its act of filing of the original note. Although the filing of the original
blank-indorsed note showed the Bank’s possession of (and thus right to enforce) it at the
time of filing the note, that filing occurred more than a year after the Bank filed suit. As
for the Purchase and Assumption Agreement, that Agreement was not authenticated for
purposes of summary judgment. Finally, the affidavit of amounts due and owing did
state that the Bank “holds the Note.” However, like the filing of the original note, the
affidavit did not establish that the Bank held the note at the time it filed suit because the
affidavit was dated more than two years later.

REVERSED and REMANDED.

ORFINGER, C.J., and BERGER, J., concur.

Footnotes:
1 See 12 U.S.C. § 2605(c)(1), (2)(B) (2011).

2 None of the other documents were authenticated. Unauthenticated documents
cannot be used in support of a motion for summary judgment. Ciolli v. City of Palm Bay,
59 So. 3d 295, 297 (Fla. 5th DCA 2011).

3 The copy of the note attached to the Bank’s complaint did not contain this
indorsement. However, this fact does not affect our analysis.

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5 Responses to “Green v. JPMorgan Chase | Florida 5th DCA – Within the original note, the indorsement in blank did not establish that the Bank had the right to enforce the note, undated”

  1. no names, please, we're in litigation says:

    HOORAY for Mr. Green! Buddy, you’re my hero!
    And, up against Greenberg Traurig, too! It warms the cockles of my little heart to think of those snooty, white-shoe “lawyers” getting their noses bloodied by a pro se litigant. So, basically the take-away from this is that comparing Greenberg Traurig with a more prominent foreclosure mill like, say, Shapiro & Fishman is like icing a dog turd….
    If I were a Greenberg Traurig attorney, I’d run from foreclosure fraud, not embrace it as they seem to be doing.
    Good luck!

  2. Mario Cano says:

    I know small giys lose Attorneys make the $$ Judges do
    What is best for thier relations and we the victim get fuck . Look BOA/ Vs Cano originaly BONY vs Cano this is the bigest fraude . Where
    Attorneys , judges etc etc etc play the $$ game and forgot
    Of the Law.

  3. Mario Cano says:

    Very sad unless you have the $$ to pay attorneys fees
    And even when , you pay the Attorneys it becomes a fight
    Not about right and wrong ??? That do not
    Exist , $$, favors, Big firms , cloudy law , etc etc etc
    Look at BONY vs Cano now after a court favor is BOA vs Cano
    This is crazy BONY present 3 different amounts of debt on law suite
    bOA shows a diferent amount etc etc . . Attorneys conflict of interes
    Very sad our court system needs to look at this case unless
    They are corroupred bottom line. Very sad

  4. Mario Cano says:

    Need a Good firm that will do right for people

  5. Mario Cano says:

    Just pay my attorneys fees credit my payment
    Pay for pain and suffering BONY has kill me

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