DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2013
VIRGIL M. BENNETT and LISSETTE C. BENNETT,
Appellants,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al.,
Appellees.
No. 4D12-2471
[August 7, 2013]
JOHNSON, LAURA, Associate Judge.
We reverse a final summary judgment of foreclosure because a
material factual issue existed on a matter pertaining to standing.
Deutsche Bank filed a mortgage foreclosure action against Virgil and
Lissette Bennett, alleging that it was “the current owner of or has the
right to enforce the Note and Mortgage.” With the complaint, Deutsche
Bank filed copies of the note with two allonges and the mortgage. The
first allonge contained an undated endorsement from the original lender
(H&R Block) to Option One Mortgage. The second allonge contained an
undated endorsement in blank from Option One Mortgage. Both
allonges were signed by the same individual, Elizabeth Causseaux.
The Bennetts filed a n amended answer and affirmative defenses,
alleging two affirmative defenses: (1) that Elizabeth Causseaux was not
authorized to sign the allonges on behalf of one or both of the separate
entities; and (2) that the Bank was not in possession of the original note.
Deutsche Bank moved for summary judgment and filed supporting
affidavits. The Bank also filed the original loan documents, which were
identical to the copies attached to the complaint. The trial court granted
the Bank’s motion for summary judgment.
The Bennetts filed a motion for rehearing, raising a number of issues
for the first time, along with those issues first raised in their affirmative
defenses. Because the issues raised for the first time in the motion for
rehearing were not properly preserved for appeal, they will not be
addressed here. See Best v. Educ. Affiliates, Inc., 82 So. 3d 143, 146 (Fla.
4th DCA 2012).
As to the issues that were properly preserved for appeal, this court
reviews the trial court’s entry of summary judgment using the de novo
standard of review. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.
3d 170, 172 (Fla. 4th DCA 2012). Summary judgment is appropriate
when there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. This court must
examine the record in the light most favorable to the Bennetts, the nonmoving
party. Id.
“A crucial element in any mortgage foreclosure proceeding is that the
party seeking foreclosure must demonstrate that it has standing to
foreclose.” Rigby v. Wells Fargo Bank, 84 So. 3d 1195, 1196 (Fla. 4th
DCA 2012) (quoting McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.
3d 170, 173 (Fla. 4th DCA 2012)). We find that Deutsche Bank failed to
prove the absence of any genuine issue of material fact regarding the
authority of the person making the endorsements on the two allonges
attached to the note.
Deutsche Bank relies on this court’s opinion in Riggs v. Aurora Loan
Services, LLC, 36 So. 3d 932 (Fla. 4th DCA 2010), holding that an
endorsement o n a note was self-authenticating pursuant to section
90.902(8), Florida Statutes (2008). In Riggs, this court affirmed the final
summary judgment of foreclosure relying on the statutory presumption
in section 673.3081(1), Florida Statutes (2008), which provides:
In an action with respect to an instrument, the authenticity
of, and authority to make, each signature on the instrument
is admitted unless specifically denied in the pleadings. If the
validity of a signature is denied in the pleadings, the burden
of establishing validity is on the person claiming validity, but
the signature is presumed to be authentic and authorized
unless the action is to enforce the liability of the purported
signer and the signer is dead or incompetent at the time of
trial of the issue of validity of the signature.
§ 673.3081(1), Fla. Stat. (2008). In Riggs, there was no issue of
authentication, and the court found that, “in an action with respect to an
instrument, the authenticity of, a n d th e authority to make, each
signature on the instrument is admitted unless specifically denied in the
pleadings.” Id. at 933 (quoting § 673.3081(1), Fla. Stat. (2008)).
In this case, the Bennetts put the validity of the signatures on both
allonges at issue. In their amended answer and affirmative defenses, the
Bennetts specifically allege that Elizabeth Causseaux was not an
authorized agent of one or both entities. Appellants rely on the inference
that the signatures were not authorized because they were made by the
same person on behalf of two separate entities. Construing this evidence
and resolving all reasonable inferences in the light most favorable to the
non-moving party, the Bennetts, this pleading was sufficient to put the
authenticity of the signatures at issue, thus creating a genuine issue of
material fact. Because a genuine issue of material fact exists, summary
judgment was improper.
Reversed and Remanded.
GROSS and MAY, JJ., concur.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Diana Lewis, Judge; L.T. Case No. 502011CA007145
XXXXMB.
Thomas Erskine Ice of Ice Appellate, Royal Palm Beach, for
appellants.
Kimberly Hopkins and Ronald M. Gache of Shapiro, Fishman &
Gache, LLP, Tampa, for appellee Deutsche Bank National Trust
Company.
Not final until disposition of timely filed motion for rehearing.
