Filed 1/23/14

CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT

ROSARIO NATIVI et al.,
Plaintiffs and Appellants,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, et al.,
Defendants and Respondents.

EXCERPT:

. . .

After careful and extensive consideration, this court concludes, solely as a matter of statutory interpretation, that the PTFA causes a bona fide lease for a term to survive foreclosure through the end of the lease term subject to the limited authority of the immediate successor in interest to terminate the lease, with proper notice, upon sale to a purchaser who intends to occupy the unit as a primary residence. The Act impliedly overrides state laws that provide less protection but expressly allows states to retain the authority to enact greater protections. Bona fide tenancies for a term that continue by operation of the PTFA remain protected by California law.

We conclude that the trial court’s analysis was mistaken and respondents were not entitled to summary judgment. Accordingly, the judgment will be reversed.

Appellants also challenge the trial court’s order granting respondent AHMSI’s motion for a protective order. We find the order was not within the trial court’s discretion and reverse.

KDVR-

Linda Donna sits in her Commerce City home, looking out front her living room window. “This is my sanctuary,” she said with a smile on her face. “This is where you close the door; all the madness is outside and it doesn’t have to be brought in here.”

The former telecommunications specialist claimed she lost her job because of her age. “It was a forced retirement,” she said. The economy and the lack of job opportunities made it difficult for Donna, 61, to find work. “But I still had to maintain properties; I was using my savings.”

Donna is one of the many in Colorado who faced foreclosure during the height of the housing crisis. According to data by the Colorado Division of Housing, more than 160,000 homeowners had foreclosure filing against them between the years of 2008 to 2011.

[KDVR]

Walmart Really?  Despicable! “Walmart held a food drive in their store during the holidays for their employees to donate food to other employees.”

HuffPo-

We’re finally having a discussion about income inequality and the enormous disparity in wealth in this country. Is it really a surprise to anyone that Walmart is the go-to example of what’s wrong in this country? They are, by some accounts, one of the most hated companies in America.

Walmart recently made the news when the National Labor Relations Board (NLRB) filed a complaint, similar to an indictment, for illegally disciplining, threatening, surveilling, and wrongfully firing workers in response to protests on Black Friday 2013.

Organizing isn’t the only way to get fired from Walmart, Megan Durisin at Business Insider put a list together that includes, among other ludicrous reasons, praying with a crying customer, defending yourself against an attack, stopping a shoplifter, calling in sick, and saving a puppy.

[HUFFINGTON POST]

image: www.dclabor.org

Great article!

Bloomberg-

One of the most disturbing realities of the 2008 financial crisis is that no Wall Street executives have been held accountable. After searching more than five years for the reason some people have gotten away with the financial equivalent of murder, I think I have finally figured it out: It’s the revolving door, stupid.

The chance for senior government officials to make millions of dollars after their public service ends convinces them -– subliminally or not -– to pull their punches. No doubt that’s why Jimmy Cayne, the former chief executive officer of Bear Stearns & Co., continues to enjoy playing bridge and golf, his $400 million-plus fortune, his sprawling mansion in Elberon, New Jersey, and his duplex at the Plaza Hotel.

It also explains why Dick Fuld, the former CEO of Lehman Brothers Holdings Inc., was able to form Matrix Advisors to consult on mergers and acquisitions, even though he had been a trader, not an M&A banker. Even if the firm has no clients, it doesn’t much matter: Fuld testified before Congress that his 2000-2007 Lehman compensation was about $310 million. He later conceded it could have been $350 million. The real number is closer to $520 million, according to people who prepared and studied Lehman’s public filings.

[BLOOMBERG]

HuffPO-

One year after federal bank regulators pledged that a nearly $10 billion legal settlement would quickly deliver cash to foreclosure abuse victims, hundreds of thousands of people are still checking their mailboxes each day, only to find them empty.

As of January, about 732,000 settlement checks had not been cashed, according to data shared with The Huffington Post by the Office of the Comptroller of the Currency — a number that exceeds the entire population of Baltimore. The total value of this unclaimed heap of money: $600 million.

Regulators say they are doing everything they can to make sure that all of those who qualify — 4.4 million people who received a foreclosure notice from one of more than a dozen major U.S. banks — receive their share of the $3.6 billion pie. It’s not clear how many of the uncashed checks were delivered to the wrong address, though regulators have acknowledged in the past that tracking people down has proved vexing.

[HUFINGTONPOST]

DES MOINES, Iowa — January 22, 2014

Wells Fargo & Co. (NYSE:WFC) announced that its subsidiary, Wells Fargo Bank, N.A., has signed an agreement with Ocwen Loan Servicing LLC for the sale of residential mortgage servicing rights on a portfolio consisting of approximately 184,000 loans with a total principal balance of $39 billion, or approximately 2 percent of Wells Fargo’s total residential servicing portfolio as of the end of fourth quarter 2013.

The sale will be finalized as servicing is transferred, which the Company expects will occur during 2014. The transaction will not be material to the Company’s financial results. The loans underlying the residential mortgage servicing rights sold are primarily owned by private investors and were not originated or owned by Wells Fargo. The loans are serviced under the trade name, America’s Servicing Company.

Decided on January 8, 2014

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
L. PRISCILLA HALL
SANDRA L. SGROI, JJ.
2012-07096
(Index No. 4091/11)

Cohn & Roth, Mineola, N.Y. (William Roth and Michael J.
Sweeney of counsel), for appellant.
Clair & Gjertsen, Scarsdale, N.Y. (Ira S. Clair of counsel), for
respondents.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered May 22, 2012, which denied its motion for summary judgment and granted the cross motion of the defendants Neil H. DePasquale and Deborah L. DePasquale, in effect, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff’s contentions, it failed to tender sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304 (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 105-106). As the plaintiff concedes, its notice to the homeowners required by RPAPL 1304 contained a factual inaccuracy. The plaintiff’s failure to make a prima facie showing of strict compliance with RPAPL 1304 requires denial of its motion for summary judgment, regardless of the sufficiency of the opposing papers (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106; Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Based on the same evidence, the defendants Neil H. DePasquale and Deborah L. DePasquale on their cross motion, in effect, for summary judgment, established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment and granted the DePasquales’ cross motion for summary judgment dismissing the complaint insofar as asserted against them.

The plaintiff’s remaining contention need not be reached in light of our determination.
RIVERA, J.P., BALKIN, HALL and SGROI, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court

• European Parliament, Strasbourg, 15 January 2014

• Speaker: Nigel Farage MEP, Leader of the UK Independence Party (UKIP), Co-President of the ‘Europe of Freedom and Democracy’ (EFD) Group in the European Parliament – http://www.nigelfaragemep.co.uk

• Debate: Programme of activities of the Greek Presidency
Council and Commission statements
[2013/2629(RSP)]

Transcript

Well I have to congratulate you, Mr Samaras, for getting the Greek presidency off to such a cracking start. Your overnight successful negotiation in the trilogue on MiFID (Markets in Financial Instruments Directive), I’m sure we’ll have them dancing in the streets in Athens, no matter that your country, very poorly advised by Goldman Sachs, joined a currency that it was never suited to, no matter that 30% are unemployed, that 60% of youth are unemployed, that a neo-nazi party is on the march, that there was a terrorist attack on the German embassy.

No don’t worry about all that because the trilogue on MiFID has been a success. And, in many ways, it sums up the two Europe’s: the Europe that’s talked about in here by the dreamers who want to impose a new United States of Europe with an identity and a currency, and the real world out there.

And you come here Mr Samaras and you tell us that you represent the sovereign will of the Greek people? Well, I’m sorry, but you’re not in charge of Greece, and I suggest you rename and rebrand your party – it’s called ‘New Democracy’, I suggest you call it ‘No Democracy’.

Because Greece is now under foreign control. You can’t make any decisions, you’ve been bailed out, and you’ve surrendered democracy, the thing your country invented in the first place.

And you can’t admit that joining the euro was a mistake – of course Mr Papandreou did that didn’t he, he even said there should be a referendum in Greece and within 48 hours, the unholy trinity (troika) that now run this European Union had him removed and replaced by a ex-Goldman Sachs employee puppet.

We are run now by big business, big banks and in the shape of Mr Barroso, big bureaucrats.

And actually that’s what these European Elections are really going to be all about. It’s going to be a battle of national democracy versus EU State bureaucracy.

Whatever you may say in this chamber, the people out there don’t want a United States of Europe, they want a Europe of sovereign states, trading and working together.

And I believe the European elections are going to mark a watershed. Up until now everybody has thought, much as they may not like, the development of the European Union, that it was inevitable. That myth of inevitability will be shattered by the European elections this year.

…………………………….
Video source: EbS (European Parliament)

Clouded Titles-

I received a 144-page criminal complaint out of Fresno County, California this morning. Looks like the California AG is busy again … busting a group of people for filing fraudulent documents in both the courts and in the land records. How many times can I say … don’t do that?

Just because the attorneys, MERS and the banks are doing it, doesn’t mean that two wrongs make a right. You should have more respect for the land records because it’s obvious the banks and their minions don’t!

continue reading [CLOUDED TITLES]

Reuters-

A blogger is entitled to the same free speech protections as a traditional journalist and cannot be liable for defamation unless she acted negligently, a federal appeals court ruled on Friday.

Crystal Cox lost a defamation trial in 2011 over a blog post she wrote accusing a bankruptcy trustee and Obsidian Finance Group of tax fraud. A lower court judge had found that Obsidian did not have to prove that Cox acted negligently because Cox failed to submit evidence of her status as a journalist.

But in the ruling, the 9th U.S. Circuit Court of Appeals in San Francisco said Cox deserved a new trial, regardless of the fact that she is not a traditional reporter.

“As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable,” 9th Circuit Judge Andrew Hurwitz wrote for a unanimous three judge panel.

[…]

However, the 9th Circuit found that the tax fraud allegations were a matter of public concern, which means Obsidian had to show evidence of Cox’s negligent behavior.

[REUTERS]

Via 83jjmack

BANK OWNED HOUSE SOLD—BUYER DID NOT KNOW IT HAD A DEAD BODY IN IT, WHICH WAS PADLOCKED IN A ROOM!! DIDN’T THE BANK KNOW??

MAJOR NETWORKS IGNORE THE STORY!! IT WAS REPORTED TO NEW YORK TIMES, BUT HOUSE BUYER NEVER HEARD BACK.

Original Letter to NYT:

I just wanted to make people aware of what the foreclosure “business” is really about and what lengths they will go to move property.

We just purchased a property in Mount Pleasant, SC, from HSBCII on December 31, 2013, whom was either the servicer or holder of the note, for an 88 year old relative who is in our care.

After driving to the property to inspect the older home on January 09, 2014, which was in disrepair and allegedly inspected and secured by a property management company, we found a decomposing, deceased male, lying on a mattress in one of the bedrooms, with the door closed. Preliminary estimates of death were between 3-4 weeks (late November, early December 2013) The locks were changed from the original and the back door was padlocked, by the property management company, allegedly working for HSBCII. There were NO signs of forced entry, nor did the deceased have a key or any relation to the original owner. The Charleston County PD is still investigating the possibility of a dubious death.

At this time, we cannot blindly accuse the property management or bank of any wrong-doing; however, it appears the ONE interior door “may” have been closed to hinder the smell of decomposition, to enable the property to be sold. This is a strong accusation and comes after narrowing the time line of death (which must be confirmed from the Coroner) and the entry of parties responsible for inspecting and securing the property. At this point substantial evidence exists for a party locking either a medically challenged or already deceased male into or on the premises, while not doing a walk-through inspection. And, the possibility does exist, given the time frame, someone “may” have intentionally covered up the existence of the body/party and the undeniable smell of death.

In the process of this purchase they NEVER disclosed the existence of the a permanently attached home, but a mobile home. They stated “they did not possess title” to the mobile and upon further investigation, the mobile was sold to a private party at a tax sale; however, they did go ahead and evict the party living in the mobile home (the son of the original owner, whom was in a nursing home), even though they did not own the “personal property” (Mobile home is considered personal property)….and again, did not hold title (affidavits available)… The realtor, Janis St. Onge of Keller Williams, SC, did in fact, mention to the selling broker Mackenzie Crabtree, multiple times the existence of a/the home on the property and to this day and upon closing, the house was NEVER mentioned in the final closing documents. And, a minimal, cursory search by the banks attorney of the plat map would have yielded the information. Then to further lend to the questionable actions of HSBCII, we have the same lock boxes on both the mobile home and the house, with property management stickers, with an 800 number on them. The $64,000 question is: how could the bank not acknowledge the existence of the house, when the property management, working on behalf of HSBCII, did secure both the mobile home and the house? Then too, how could an ailing or deceased person close the “one” door on himself and padlock himself on the property? Where is this acceptable, persons delegated and compensated to secure and inspect the premises not properly perform their duties and/or relay the situation to their superiors…or in fact did they?

Many questions exist and the overall banking behavior has been diminished and frankly, covered up.

We have inherited the problem of lies and deception and now hold title to a property that is tainted, stained. The cost of this is the inability to resell, rent and or demolish the house at our cost, where we intended to reside and feel “eerily” uncomfortable at this point. There are thousands of victims of this flawed foreclosure process, not just from the borrower’s side. We will now carry the burden of ineffective policies of the bank and damages of un-marketability, and costs associated with a final resolution and the lingering memories of the party, who was somebody’s son, then was left, unacknowledged by trusted, responsible representatives of this bank.

Many can say, “they understand”, frankly, NO they cannot, until you are faced with the frightening and distressing situation unfolding before your eyes.

Regards,

For further information please contact: newenglandblonde@yahoo.com

FHFA …Who do’ya love… WALL STREET!

E-mails obtained through a FOIA request reveal the extraordinary access SIFMA had to Federal Housing Finance Administration officials.

The Nation –

Despite Wall Street’s recent gains, the foreclosure crisis that displaced 10 million Americans continues to wreak havoc on communities. One ongoing problem is that 10.7 million homeowners are stuck in underwater homes, in which the mortgage is more than the house is currently worth. Although the federal government doled out $700 billion to Wall Street via TARP during the 2008 financial crisis, it has not taken bold action to solve this problem. Money set aside during the bailout to help homeowners remains largely unspent, and a key federal housing regulator refused to pursue mortgage write-downs for struggling borrowers, even though their own analysis showed these loan modifications would save the agency money.

In this vacuum, several cities have begun to take matters into their own hands, as Peter Dreier reported on for The Nation. One plan by private equity company Mortgage Resolution Partners proposes that cities use eminent domain—a power traditionally reserved for seizing property for public use—to seize mortgage loans. The amount owed on the loans would then be reduced so that the borrower was no longer underwater, avoiding foreclosure. In January 2013, Brockton, Massachusetts commissioned a study and formed a working group to investigate using eminent domain to help struggling homeowners. In September 2013, the city council of Richmond, California, voted to move forward with such a plan.

[THE NATION]

The complete emails via ACLU –

American Banker Consumer Finance Mortgage Update

NYT-

Gov. Andrew M. Cuomo has asked people if they think Eric T. Schneiderman, the attorney general of New York State, wears eyeliner.

Mr. Schneiderman has told people that he believes Mr. Cuomo’s administration is Machiavellian and is out to undermine him.

A little backbiting by the officials and their aides, who occupy power suites at opposite ends of the State Capitol’s second floor, might be chalked up to the kind of rivalry that is an unseemly but unsurprising fact of life atop the state’s political food chain. But this relationship, as described in repetitive detail by many in New York Democratic circles, has gone from bad to toxic.

“The two men are like oil and water,” said one Democrat who knows both of them well, “and lately fire seems to have been added.”

[NEW YORK TIMES]

image: Mike Groll/Associated Press

Via: Dave Krieger & Greg Leyh

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT

FEDERAL NATIONAL MORTGAGE ASSOCIATION and NATIONSTAR MORTGAGE, LLC,

Appellants,

v.

JEFFREY A. CONOVER, et al.,

Respondents.
Appeal from the Circuit Court of Clay County, Missouri The Honorable Karen Krauser, Judge Before Division II: Mark D. Pfeiffer, Presiding Judge, and Joseph M. Ellis and Victor C. Howard, Judges

The Federal National Mortgage Association (“Fannie Mae”) and Nationstar Mortgage, LLC (“Nationstar”), appeal the “final judgment”1 of the Circuit Court of Clay County, Missouri (“trial court”), dated February 11, 2013, (1) granting summary judgment to Jeffrey and Angela Conover (“the Conovers”) in their wrongful foreclosure/quiet title claim against Fannie Mae and Nationstar and (2) dismissing Fannie Mae?s unlawful detainer petition and Fannie Mae and Nationstar?s wrongful foreclosure/quiet title counterclaim. We reverse and remand.

[…]

Housing Wire-

Fannie Mae has purchased mortgage servicing rights on about 64,000 of its own loans from Citigroup (C), as the nation’s 3rd largest lender looks to shed future liabilities tied to its servicing practices.

The unusual transaction was announced late Wednesday, with the bank saying it had reached a definitive agreement with the GSE to sell servicing rights tied to approximately $10.3 billion of unpaid principal balances on mortgages owned by the GSE.

“The sale includes the majority of the delinquent loans serviced by CitiMortgage for Fannie Mae, and it represents nearly 20% of the total loans serviced by CitiMortgage that are 60 days or more past due,” the bank said in a statement. Nearly all of the loans transfered are delinquent.

[HOUSING WIRE]

Diane Gray,
v.
Federal National Mortgage Association.

PER CURIAM.

Diane Gray appeals from a summary judgment entered by the Jefferson Circuit Court (“the trial court”) in favor of the Federal National Mortgage Association (“Fannie Mae”). We reverse the trial court’s judgment.

Facts and Procedural History

On April 15, 2011, Fannie Mae filed a complaint against Gray asserting that, “by virtue of foreclosure on April 4, 2011, of that certain Mortgage originally between Diane Gray and Mortgage Electronic Registration Systems, Inc. acting solely as nominee for Irwin Mortgage Corporation subsequently transferred and assigned to EverHome Mortgage Company and further purchased by [Fannie Mae],” Fannie Mae is the owner of certain real property located in Jefferson County. Fannie Mae alleged that it had served a written demand for possession on Gray, that Gray had failed to vacate the property, and that Gray had lost her right to redeem the property. Fannie Mae requested possession of the property, money damages for the wrongful retention of the property, and an order stating that Gray had “forfeited her right to redemption for failing to vacate the property.” On May 18, 2011, Gray answered and asserted as an affirmative defense that the foreclosure was void.

On March 27, 2012, Fannie Mae filed a motion for a summary judgment, along with evidentiary materials in support thereof. Fannie Mae submitted the affidavit of Robin Murdock, vice president for “EverBank sbm Everhome Mortgage Company” (hereinafter referred to as “EverBank” or “EverHome”), the servicer of the loan, in which Murdock stated, in pertinent part:

“3. In my present position, I have direct access to business records of EverBank as loan servicer regarding the account which forms the basis of this action and am a custodian of said business records. I have reviewed said relevant business records, and consistent with my review of the business records of EverBank as loan servicer, I have knowledge of the facts set forth in this Affidavit.

“4. The business records were made in the ordinary course of the business and it was the regular course of said business to make such records. Said records relative to Defendant GRAY … and this action, were made at the time of the transaction, occurrence or event referred to therein or were made within a reasonable time thereafter, and said records are kept under my care, supervision, and/or control.

“5. On or about January 30, 2004, GRAY entered into and executed that certain Note, in favor of Irwin Mortgage Corporation and its successors and assigns….

“6. On or about January 30, 2004, GRAY entered into and executed that certain Mortgage, securing the Note, in favor of FANNIE MAE….

“7. On May 10, 2007, Irwin Mortgage Corporation executed an Assignment of Mortgage to EverHome Mortgage Company (aka EverBank)….

“8. On November 4, 2010 and December 31, 2010, GRAY [was] sent a Notice of Default. This notice informed GRAY of [her] failure to make payments according to the terms of the Note and Mortgage and advised her of the possibility of foreclosure. … This notice was sent to the address recited in the Mortgage.

“9. On February 8, 2011, GRAY [was] sent a Notice of Acceleration at the address recited in the mortgage….

“10. The notice of foreclosure was published on February 9, 16, 23, and March 5, 2011, in The Alabama Messenger….

“11. On April 4, 2011, the Mortgage was foreclosed through a valid foreclosure sale….

“12. By virtue of the April 4, 2011 foreclosure sale, FANNIE MAE was the highest and best bidder at the foreclosure sale and is the owner of the [property].

“13. On April 4, 2011, a demand for possession of the property was sent to the GRAY at the property address set forth in the Mortgage….”

Fannie Mae also attached a note dated January 30, 2004, given by Gray in favor of Irwin Mortgage Corporation; a mortgage (“the mortgage”) relating to the property given by Gray to Mortgage Electronic Registration Systems, Inc. (“MERS”), acting solely as a nominee for Irwin Mortgage and its successors and assignees; an assignment of the mortgage from MERS, as nominee for Irwin Mortgage and its successors and assignees, to EverHome dated May 10, 2007; a letter dated November 4, 2010, notifying Gray that she was in default on her mortgage payments and that she had 20 days to get her account current or the mortgage would be foreclosed; a letter to Gray dated December 31, 2010, notifying her of her breach of the note and of the mortgage and stating that she must pay the amount of $21,094.53 in order to reinstate the loan and to avoid acceleration of the total amount due under the note and the mortgage; a letter dated February 8, 2011, notifying Gray that she was in default of the note and the mortgage and that EverHome was accelerating to maturity the entire unpaid balance of the loan; proof of publication of the notices in the Alabama Messenger, a newspaper of general circulation in Jefferson County; a foreclosure deed dated April 4, 2011, from EverHome to Fannie Mae, which states that the foreclosure sale occurred “at public outcry in front of the Courthouse door in Birmingham, Jefferson County, Alabama,” on that day “between the legal hours of sale” and which includes a certification from the auctioneer that the sale took place on that date at 11:33 a.m.; and a demand for possession of the property sent by Fannie Mae to Gray dated April 4, 2011.

On May 1, 2012, Gray filed her response to the summary-judgment motion, along with her affidavit in support thereof. In her affidavit, Gray averred, in pertinent part:

“I bought the property … on January 30, 2004, and signed a promissory note with Irwin Mortgage Corporation and executed a mortgage with [MERS] as nominee for Irwin Mortgage Corporation. The note and mortgage are secured by the property. … The mortgage was recorded in the probate records of Jefferson County, Alabama. I am the sole owner of the property in which I currently reside.

“The mortgage and note [were] apparently transferred to EverHome Mortgage Company at some point thereafter; although, I was never notified of said transfer. Prior to the foreclosure EverHome was acting as the servicer of my mortgage loan. The original terms of the note and mortgage required [me] to pay $708.59 each month which included escrow funds for taxes and insurance. My mortgage is a Fannie Mae mortgage and so states on the face of the document. In September 2007, I lost my job due to company layoffs. As a result of my job loss, my household income significantly decreased, and I began having difficulty paying the mortgage payments. Because of the circumstances, I began seeking assistance from the mortgage company regarding my difficulty in making the monthly mortgage payments. In October 2007, I began contacting the mortgage company about making payment arrangements. It ried to get EverHome to assist me, but it refused so I was forced to file a chapter 13 bankruptcy petition on March 31, 2008 to save my home. While I was in Bankruptcy, I lost my job in October 2010, and had difficulty again making my mortgage payments and the bankruptcy payments. I got behind with the mortgage payments again and was sent a notice that EverHome intended to foreclose on my home. I again contacted the mortgage company in February 2011 in an effort to save my home and asked for HAMP [Home Affordable Modification Program] modification through EverHome’s loss mitigation program.

“In February and March 2011, I spoke to the mortgage company numerous times about a loan modification or work out plan through their loss mitigation program. They told me they would work with me and that I qualified for assistance and would get a loan modification. However, they did not follow through with assisting me, and I never got the loan modification to which I was promised. I could never get anyone to follow up with the modification despite my repeated calls to the mortgage company. I sent all the requested information to them; however, I never heard from them. I had to keep calling them back regarding my application for assistance. I was told by them that the foreclosure would not go forward as long as they were working with me through the loss mitigation program. Because of these communications with the lender, I was confused about the foreclosure procedure. Further, I relied upon these communications and believed that the mortgage company was working with me to help me keep my home and avoid foreclosure.

“Although, I was aware I was in foreclosure, I never received any notice that a foreclosure sale had been set for April 4, 2011. On Friday, April 1, 2011, I was told by representatives of the mortgage company not to worry, that they were still reviewing my account for a loan modification and that they would postpone any sale until the review was finished. My first knowledge [of] the foreclosure sale was the morning of the sale (April 4, 2011) at approximately 9:00 a.m. when I called the mortgage company to check on the status of the mortgage and was advised that the house had was set to be sold that day at noon and that there was nothing further that they could do to stop the foreclosure sale. They refused to offer me any further help to save my home. I went to the courthouse at approximately 11:20 am the morning of the sale and stood on the front steps of the main entrance of the Jefferson County Courthouse. I stayed there until after 12:30 p.m. and no one ever appeared there to [sell] my house. I later received a letter from the law office of Sirote & Permutt advising me that the house had been sold and asking me to vacate the premises.

“I was never sent nor did I receive any proper notice of default or an opportunity to cure the delinquency. Furthermore, I was never provided with a notice of intent to accelerate as required by my mortgage contract. Paragraph 21 requires that the mortgage company send me a default notice and a notice of intent to accelerate the mortgage indebtedness. I was not provided with a notice of intent to accelerate stating the following elements: (a) the specific default, (b) the action required to cure the default, (c) a date by which to cure the default, and (d) that failure to cure the default on or before the date specified in the notice will cause acceleration of the debt. The notice was required by the mortgage, and was extremely important. I have a meritorious defense to this action. This property was wrongly foreclosed. Even if the mortgage contract is held to be valid, EverHome has failed to abide by the terms and conditions of the mortgage contract. Since its power of sale and ability to foreclose is conditioned upon the mandates and procedures of the contract, their failure to follow said contract renders the foreclosure sale invalid. EverHome wrongfully foreclosed and attempted to purchase for itself the property on April 4, 2011 without giving me a proper notice of the default, a notice of intent to accelerate, a notice of sale, and an opportunity to cure that default. Prior to acceleration of the debt, I did not receive the required notice outlined in the mortgage document that I was given on January 30, 2004.

“The indebtedness on the property at the time of the foreclosure sale was approximately $75,000.00. [Fannie Mae] bought the property from itself at the foreclosure sale for $73,185.89.

“Failure to set aside this foreclosure sale would render a harsh result on me due to my financial situation. I want to keep this property.”

Both parties moved to strike the affidavits submitted by the other party. On May 22, 2012, Fannie Mae filed a reply to Gray’s response to the summary-judgment motion. Fannie Mae attached an affidavit of the foreclosure-sale auctioneer averring that he had conducted the foreclosure sale on April 4, 2011, “at or about 11:33 AM during the legal hours of sale at the place appointed for foreclosure auctions in front of the main entrance to the Courthouse in Birmingham, Jefferson County, Alabama.”

After a hearing, the trial court entered a judgment on June 22, 2012, in favor of Fannie Mae, awarding possession of the property to Fannie Mae and ordering the Jefferson County sheriff to restore possession of the property to Fannie Mae. The trial court found that Gray had forfeited her right of redemption by failing to deliver possession of the property to Fannie Mae after having been given 10 days’ written notice. The trial court did not rule on the respective motions to strike. On July 25, 2012, Gray filed a postjudgment motion to alter, amend, or vacate the trial court’s judgment; Fannie Mae filed a response to the motion on September 4, 2012. Following a hearing, the trial court denied Gray’s postjudgment motion on September 6, 2012. On October 17, 2012, Gray filed her notice of appeal to this court. On May 22, 2013, this court transferred the appeal to the Alabama Supreme Court for lack of jurisdiction; that court subsequently transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7.

Standard of Review

“`We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary judgment motion:

“`”We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. `Substantial evidence’ is `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.”`

“American Liberty Ins. Co. v. AmSouth Bank, 825 So. 2d 786, 790 (Ala. 2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369, 372 (Ala. 2000) (citations omitted)).”

General Motors Corp. v. Kilgore, 853 So. 2d 171, 173 (Ala. 2002).

Discussion

On appeal, Gray argues that the summary judgment entered by the trial court was improper because, she says, there were genuine issues of material fact in dispute. Specifically, she argues that there was no evidence indicating that EverHome was the owner of the note at the time of the foreclosure sale. We agree. The only evidence regarding the note is a copy of the note indorsed by the vice president of Irwin Mortgage; that indorsement is not dated and does not include the name of the assignee of the note. In Harris v. Deutsche Bank National Trust Co., [Ms. 1110054, Sept. 13, 2013] ___ So. 3d ___, ___ (Ala. 2013), our supreme court reasoned:

“The Harrises also argue that the power of sale described in the mortgage was given by the Harrises as part of the security for the repayment of the debt evidenced by the note and can be `executed’ only by the trustee ifit was the party entitled to the money thus secured. They cite § 35-10-12, Ala. Code 1975, which states that the power to sell lands given in a mortgage `is part of the security and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured.’ In Carpenter v. First National Bank, 236 Ala. 213, 181 So. 239 (1938), this Court applied the predecessor to § 35-10-12, stating:

“`A power of sale in a mortgage of real estate is a part of the security, and passes to any one who by assignment or otherwise becomes entitled to the money secured. Code 1923, § 9010.

“`But an agent of such holder to whom the mortgage is delivered merely for the purpose of foreclosure, having no ownership of the debt, is not authorized to foreclose in his own name, and execute a deed in his name to the purchaser. Ownership of the debt does not pass to such agent merely because the note is indorsed in blank. Such foreclosure is ineffective, and a court of equity may take jurisdiction for the purpose of foreclosure.’

“236 Ala. at 215, 181 So. at 240 (emphasis added). The foreclosure deed in this case was executed by the trustee in its own name, not on behalf of the lender, SouthStar, or any other party to which SouthStar may have assigned the note. The deed was effective to transfer title and to foreclose the rights of the mortgagor, therefore, only if the trustee, in its own name, was entitled to receive the money secured by the note at the time it executed and delivered that deed.

“The parties agree in their briefs, however, and we accept for purposes of this case, that the mortgage given MERS `solely as a nominee for Lender and Lender’s successors and assigns’ did not entitle MERS to the money secured by the mortgage. Accordingly, the subsequent assignment of that mortgage by MERS to the trustee did not accomplish an assignment of that right to the trustee. The trustee in fact concedes that summary judgment was inappropriate in this case and that on the state of the current record there is a genuine issue of material fact as to whether the trustee received an assignment of the note so as to have entitled it to execute the power of sale in its own name. (It asserts that, if this case is returned to the trial court, it will introduce `conclusive evidence’ of its receipt as early as 2005 of the debt evidenced by the original note signed by the Harrises.) The summary judgment entered by the trial court therefore is due to be vacated and the case remanded for a determination as to whether the trustee received an assignment of the right to receive the money secured by the note, and thus the power to execute the corresponding power of sale in its own name, before executing and delivering the foreclosure deed.”

(Footnote omitted.) See also Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, Sept. 13, 2013] ___ So. 3d ___, ___ (Ala. 2013) (holding that the right of the foreclosing entity to conduct a foreclosure sale must be proven in order to show that the buyer at a foreclosure sale has superior legal title and a cause of action to eject the debtor). Further, in Coleman v. BAC Servicing, 104 So. 3d 195 (Ala. Civ. App. 2012), this court explained:

“Alabama law specifically contemplates that there can be a separation. See § 35-10-12 and Harton [v. Little, 176 Ala. 267, 57 So. 851 (1911)]. The Restatement (Third) of Property: Mortgages takes the position that a note and mortgage can be separated but that `[t]he mortgage becomes useless in the hands of one who does not also hold the obligation because only the holder of the obligation can foreclose.’ Restatement (Third) of Property: Mortgages § 5.4, Reporter’s Note — Introduction, cmt. a at 386. The Restatement explains: `”The note is the cow and the mortgage the tail. The cow can survive without a tail, but the tail cannot survive without the cow.”‘ Id. at 387 (quoting Best Fertilizers of Arizona, Inc. v. Burns, 117 Ariz. 178, 179, 571 P.2d 675, 676 (Ct. App.), reversed on other grounds, 116 Ariz. 492, 570 P.2d 179 (1977)).”

104 So. 3d at 205.

Similar to Harris, in the present case “the mortgage given MERS `solely as a nominee for [Irwin Mortgage] and [Irwin Mortgage’s] successors and assigns’ did not entitle MERS to the money secured by the mortgage. Accordingly, the subsequent assignment of that mortgage by MERS to [EverHome] did not accomplish an assignment of that right to [EverHome].” Id. at ___. EverHome presented no evidence indicating that the note had been transferred “by delivery of possession or by written assignment.” Coleman v. BAC Servicing, 104 So. 3d at 203 (“The promissory note evidencing that debt was a bearer instrument that could be transferred in two ways: by delivery of possession or by written assignment.”); see also Ala. Code 1975, § 8-5-24 (“The transfer of a… note given for the purchase money of lands, whether the transfer be by delivery merely or in writing, expressed to be with or without recourse on the transferor, passes to the transferee the lien of the vendor of the lands.”). “`[O]nly the holder of the obligation can foreclose.'” Coleman, 104 So. 3d at 205. Because there was no evidence presented that EverHome, the foreclosing entity, was the holder of the note at the time of the foreclosure sale, we conclude that, like in Harris, the summary judgment entered in the present case was improper.

Gray makes several other arguments regarding the propriety of the summary judgment and the denial of her motion to strike. Because we are reversing the summary judgment on the merits, we pretermit discussion of those arguments. See Crews v. McLing, 38 So. 3d 688, 696 (Ala. 2009).

Based on the foregoing, we reverse the summary judgment and remand this cause for further proceedings.

REVERSED AND REMANDED.

Pittman, Moore, and Donaldson, JJ., concur.

Thompson, P.J., concurs in the result only, with writing, which Thomas, J., joins.

THOMPSON, Presiding Judge, concurring in the result only.

In defense of the ejectment action initiated by the Federal National Mortgage Association (“Fannie Mae”), Diane Gray argued that the foreclosure deed pursuant to which Fannie Mae claimed to own the property was invalid because there was no authority to conduct the foreclosure sale upon which that deed is based. Among other things, Gray contends that, in support of its summary-judgment motion in its ejectment action, Fannie Mae failed to present prima facie evidence that either the mortgage or the note had been transferred to EverHome Mortgage Company before EverHome conducted the foreclosure sale.^[1]

The record indicates that on May 10, 2007, Mortgage Electronic Registration Systems, Inc. (“MERS”), in its capacity as nominee for Irwin Mortgage Company, the original mortgagee, purported to assign to EverHome the mortgage executed by Gray in favor of Irwin Mortgage Company. However, the power to sell or foreclose is available only to a person or entity entitled to payment of the money secured by the mortgage or note. § 35-10-7, Ala. Code 1975. In Harris v. Deutsche Bank National Trust Co., [Ms. 1110054, Sept. 13, 2013] ___ So. 3d ___ (Ala. 2013), our supreme court held that when an agent, or nominee, of a lender is not entitled under § 35-10-7 to receive the money secured by a mortgage, the agent may not purport to transfer the right to the receive that money on behalf of the lender. In other words, under the facts of this case, if MERS was not entitled to receive the money secured by the mortgage from Gray, it could not validly assign to EverHome the right to receive that money. The language specifying the rights afforded MERS under Gray’s mortgage is identical to the language setting forth the rights MERS had under the mortgage at issue in Harris. In Harris, the parties agreed that the language detailing MERS’s rights under the mortgage did not entitle MERS under § 35-10-7 to the money secured by the mortgage at issue, and our supreme court accepted that agreement for the purposes of resolving the appeal. ___ So. 3d at ___. In this case, there is no such agreement. However, Fannie Mae has not argued that at the time MERS executed its purported assignment of Gray’s mortgage to EverHome, MERS had a right to receive the money secured by the mortgage. In the absence of such arguments or evidence, I believe the holding in Harris controls this issue in this case. EverHome could foreclose and transfer the property via a foreclosure deed to Fannie Mae only if, at the time it foreclosed, EverHome had the right to receive the money secured by the mortgage. Harris, ___ So. 3d at ___. Under our supreme court’s recent holding in Harris, MERS could not properly assign the right to the payment of the money secured by Gray’s mortgage to EverHome. Accordingly, I must conclude that Fannie Mae failed to present a prima facie case that EverHome had acquired the right to foreclose on Gray’s mortgage by virtue of a purported assignment of that mortgage from MERS to EverHome.^[2]

However, the inquiry does not necessarily end when it is determined that a valid or timely assignment of a mortgage did not occur. This court has recognized that a mortgage need not be assigned in order to enable an owner of the debt secured by that mortgage to foreclose under a power of sale. Perry v. Federal Nat’l Mortg. Ass’n, 100 So. 3d 1090, 1095 (Ala. Civ. App. 2012). A promissory note secured by a mortgage that is indorsed in blank may be transferred merely by possession. Id. This court has explained:

“The promissory note evidencing that debt was a bearer instrument that could be transferred in two ways: by delivery of possession or by written assignment. See Ala. Code 1975, § 8-5-24 (`The transfer of a … note given for the purchase money of lands, whether the transfer be by delivery merely or in writing, expressed to be with or without recourse on the transferor, passes to the transferee the lien of the vendor of the lands.’); Kevin M. Hudspeth, Clarifying Murky MERS: Does Mortgage Electronic Registration Systems, Inc., Have Authority to Assign the Mortgage Note in a Standard Illinois Foreclosure Action?, 31 N. Ill. U. L. Rev. 1, 14 (2010) (stating that `a plaintiff in a mortgage foreclosure action obtains the right to enforce the note in one of two primary ways: (1) through proper assignment …, or (2) through negotiation under the U[niform] C[ommercial] C[ode]’).

“`Ownership of a contractual obligation can generally be transferred by a document of assignment; see Restatement, Second, Contracts § 316 [(1981)]. However, if the obligation is embodied in a negotiable instrument, a transfer of the right to enforce must be made by delivery of the instrument; see [former] U.C.C. § 3-202 (1995).’

“Restatement (Third) of Property: Mortgages § 5.4, cmt. b. at 381.”

Coleman v. BAC Servicing, 104 So. 3d 195, 203-04 (Ala. Civ. App. 2012).

As the main opinion indicates, the record on appeal contains a blank indorsement to EverHome of the note executed by Gray and secured by the mortgage.^[3] My review of the evidence in the record indicates that Fannie Mae failed to present evidence as to whether EverHome was in possession of the note that was indorsed in blank. Murdock’s affidavit speaks only in terms of certain actions being taken by some unspecified entity—perhaps EverHome, although this court may not so speculate—in seeking to accelerate Gray’s debt and foreclose based on the purported assignment of the mortgage from MERS to EverHome. EverHome might have been in possession of the promissory note at the time it foreclosed; however, Fannie Mae failed to make a prima facie showing in support of its summary-judgment motion that EverHome was in possession of the note.

Fannie Mae attempted to base its prima facie case in support of ejectment on its claim that it had a valid foreclosure deed. However, Fannie Mae failed to present prima facie evidence demonstrating that EverHome had the authority to foreclose and to issue the foreclosure deed. Accordingly, I conclude that Gray has demonstrated on appeal that the trial court erred in entering a summary judgment in favor of Fannie Mae.

Thomas, J., concurs.

[1] In considering this issue, I do not address the argument raised by Gray that some portions of Fannie Mae’s evidence was not admissible under Rule 56, Ala. R. Civ. P.

[2] In support of its summary-judgment motion, Fannie Mae submitted the affidavit of Robin Murdock, the “Vice President for Everbank sbm Everhome.” In his affidavit, Murdock stated that, “[o]n May 10, 2007, Irwin Mortgage Corporation executed an Assignment of Mortgage to EverHome Mortgage Company (aka EverBank). A copy of the Assignment of Mortgage is attached as `Exhibit C.'” The exhibit to which Murdock referred in his affidavit was the May 10, 2007, purported assignment from MERS, as nominee for Irwin Mortgage Company, to EverHome. Fannie Mae submitted no other evidence tending to indicate that Irwin Mortgage Company had executed an assignment of Gray’s mortgage to EverHome.

[3] A “blank indorsement” is “an indorsement that names no specific payee, thus making the instrument payable to the bearer and negotiable by delivery only.” Black’s Law Dictionary 844 (9th ed. 2009).

Background

The Federal National Mortgage Association (Fannie Mae or Enterprise) is a federally chartered corporation that was placed in conservatorship by the Federal Housing Finance Agency (FHFA or Agency) in September 2008 due largely to losses on residential mortgage loans from defaults. While in conservatorship, FHFA has the decision-making authority in addition to its responsibilities as a regulator for the Enterprise. Short sales, also known as preforeclosure sales, are a part of Fannie Mae’s foreclosure alternative strategy that can minimize the severity of losses it incurs as a result of loan defaults. In a short sale, the borrower sells the residence for less than the balance remaining on the loan and uses the proceeds to help satisfy the mortgage obligation. The proceeds received from a short sale are less than the amount of debt secured by liens against the property, which most often results in a loss to the Enterprise. In certain short sale transactions, depending on the borrower’s financial condition, the borrower may be required to make a contribution toward the short sale, which in turn reduces the Enterprise’s loss on the sale.

Through their Seller/Servicer Guides, Fannie Mae and Freddie Mac provide guidance on a large number of matters, including delinquency management and default prevention. Servicers are required to comply with the guidance through their contractual agreements with the Enterprises. The Enterprises have quality control processes that are designed to identify and address servicer noncompliance and the contracts include remedial tools, such as financial penalties. Pursuant to its delinquency management and default prevention guidance, Fannie Mae expects servicers to identify borrowers who are having difficulty making mortgage payments due to a financial hardship and offer appropriate workout options, such as a short sale. Fannie Mae also depends on its servicers to evaluate borrowers for contributions unless they are required to request approval from Fannie Mae for the contribution amount. Furthermore, Fannie Mae relies on its servicers to collect borrower contributions with the net proceeds from the short sale closing.

Before Fannie Mae clarified the requirements for borrower contributions, there was little guidance for servicers to follow with respect to requesting contributions and collecting them. On August 22, 2012, Fannie Mae issued Servicing Guide Announcement SVC-2012-19 that introduced new requirements to simplify and streamline the short sale process.1 This announcement provided specific guidance for evaluating a borrower for a contribution and reminded servicers that they must not request cash contributions and/or promissory notes where applicable law prohibited borrower contributions; however, it did not state that borrower contributions were prohibited in California.

Although Fannie Mae issued guidance to its servicers informing them of the requirements for evaluating borrower contributions, Fannie Mae and its servicers did not always have the option to collect them. On September 30, 2010, the state of California enacted a law which went into effect on January 1, 2011, that prohibited a deficiency judgment for any note where the property sold for less than the indebtedness.2 According to Fannie Mae, the language of this new law was unclear and did not expressly prohibit borrower contributions in short sale transactions.

On July 11, 2011, the state of California amended Section 580e on an emergency basis to provide clarity in connection with borrower contributions on short sale transactions. The amendment, which went into effect four days later on July 15, clarified the law to include an express prohibition against any type of borrower contribution in connection with a short sale. Specifically, Section 580e subsection (b) forbids “A holder of a note” from requiring the borrower “to pay any additional compensation, aside from the proceeds of the sale, in exchange for the written consent to the sale.”

Fannie Mae and its servicers were also prohibited from collecting contributions for short sales completed through Fannie Mae’s Home Affordable Foreclosure Alternatives (HAFA) Program that went into effect on August 1, 2010.3 Fannie Mae’s HAFA Program was discontinued with the implementation of the Standard Short Sale Program on November 1, 2012, which was created as part of FHFA’s Servicing Alignment Initiative (SAI).4

Sad news. Back in 2011 she made news and here is the post –  Helping Texana Hollis, 101-year-old woman evicted from her home

The Detroit News-

Texana Hollis, a centenarian who was once evicted from her Detroit home two years ago after failing to pay $59.95 in property taxes, has died.

Mrs. Hollis died at her Detroit home on Dec. 31, 2013, from natural causes, said her granddaughter Deborah Hollis-Coburn. She was 103.

“She was a God-fearing, caring and loving mother, grandmother, great-grandmother, great-great-grandmother and friend,” said Hollis-Coburn, 49, of Tracy, Calif.

[THE DETROIT NEWS]

image: Detroit Free Press

Fish always rots from the head…

Bloomberg-

U.S. regulators are set to give banks an exemption from Volcker Rule limits for collateralized debt obligations composed mostly of small-bank securities, according to two people briefed on the agencies’ plans.

The adjustment to the rule, which could come as soon as today, would allow banks to keep CDOs backed by trust-preferred securities while limiting the level of insurance and big-bank content, said the people, who requested anonymity because the regulators haven’t acted.

After regulators approved the Volcker Rule on Dec. 10, smaller U.S. banks said it could force them to take as much as $600 million in losses on certain CDOs held by about 300 firms. The Federal Reserve, Federal Deposit Insurance Corp., Securities and Exchange Commission and Office of the Comptroller of the Currency said they would consider exempting the securities and would deliver their answer by tomorrow.

[BLOOMBERG]

Continue Reading

Of course, they are… Fraud is their business model.

The Government will have an fix APP for this too. Pay a settlement and be on their way to rake in billions in bonuses.

Reuters-

Wall Street traders may be manipulating a key derivatives market and front running Fannie Mae and Freddie Mac, hurting the US-owned mortgage giants in the process, according to an FBI intelligence bulletin reviewed by Reuters.

Using what Federal Bureau of Investigation agents described as “unsophisticated tradecraft,” such as hand signals and special telephone ring tones, some traders are conspiring to rig rates on large orders submitted by Fannie Mae FMNA.OB and Freddie Mac (FMCC.OB), or front running them in the interest rate swaps market, the document says.

The FBI said in the bulletin that the information came from a former high-level employee at a U.S. bank and an employee at a Canadian Bank, plus interviews with other bank workers conducted in 2012 and 2013. The former high-level employee at the U.S. bank estimated the front running had resulted in profits of $50 million to $100 million for the bank, the FBI said.

[REUTERS]

JOHN VIOLA, Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION, ET AL., Appellee.

Morgan L. Weinstein of Van Ness Law Firm, PLC, Deerfield Beach, for appellee.

MAY, J.

This case is about time and compliance with the Florida Rules of Civil Procedure. A homeowner appeals a final summary judgment of foreclosure. He raises numerous issues, among which is that the trial court erred in entering a final summary judgment when the evidence relied on by the bank was served fewer than twenty days before the hearing. We agree and reverse.

In 2008, the bank filed a two-count complaint, seeking to (1) re-establish a lost note and (2) foreclose on the mortgage. The complaint alleged that the bank owned and held the note and mortgage, and that an assignment had been, or would be, recorded in the public record.

The bank alleged that a “substantial copy of the note” was attached. However, only an uncertified, unsigned copy of the first twelve pages of the mortgage was attached to the complaint. No note was attached.

On February 12, 2009, the bank moved for final summary judgment on both counts. In support, the bank filed an affidavit of indebtedness and an affidavit of the lost note. The loan servicer attested to the amount of the debt. The servicer also attested that the original note was lost or had been destroyed, and the bank “was in possession of the subject note and was entitled to enforce it when loss of possession occurred.” The servicer then attested that “a true, correct, and substantial copy of the lost or destroyed Note” was attached to the complaint even though no note had been attached. The servicer did not attest that the bank owned the note when the complaint was filed.

The homeowner filed a response, asserting that the mortgage attached to the complaint showed ownership in the original note owner, not the bank, and it did not show that the bank had acquired the note and mortgage from the original note owner. He argued that the discrepancy between the note and mortgage and the complaint was material, and negated the bank’s claim. Because it did not appear that the bank was the holder and owner of the note and mortgage before the complaint was filed, the bank lacked standing.

Two years later, on April 28, 2011, the bank filed an amended affidavit in support of its motion for summary judgment. The servicer’s representative again attested to the amount owed, but not the bank’s ownership of the note and mortgage prior to the filing of the complaint. The bank filed copies of the original note and mortgage on June 9, 2011—twelve days before the scheduled hearing.

The bank also filed a copy of an allonge, which included one endorsement from the original note owner to Aegis Mortgage Corporation, and a second endorsement in blank from Aegis. Both endorsements were undated.

The court held a hearing on June 21, 2011. The bank filed the original note and mortgage that day. The court entered a final summary judgment of foreclosure, from which the homeowner now appeals.

The homeowner argues that the bank failed to comply with rules 1.510(c) and (e) of the Florida Rules of Civil Procedure by serving unauthenticated copies of the note and mortgage only twelve days before the hearing, and by failing to attach copies of the note and mortgage to its amended affidavit of indebtedness.

The bank responds that the loan documents were timely filed and were self-authenticating. According to the bank, it was unnecessary to attach copies of the note and mortgage to the amended affidavit of indebtedness because they had already been filed, even if they had not been attached to the complaint. Finally, the bank argues that the homeowner failed to timely object and further failed to provide a transcript of the hearing.

The issue is a simple one. Rules 1.510(c) and (e) of the Florida Rules of Civil Procedure provide that a motion for summary judgment, along with any “summary judgment evidence” “on which the movant relies,” must be served at least twenty days before the hearing, and the documents supporting the affidavits must be authenticated. Here, on June 9, 2011, more than two years after filing the motion for summary judgment and only twelve days before the scheduled hearing on that motion, the bank filed copies of the original note and mortgage.

This case is akin to Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2d DCA 2010). There, the bank filed a two-count complaint against the homeowner to re-establish a lost note and foreclose a mortgage. Id. at 977. The bank failed to attach either a copy of the promissory note or an assignment to the complaint. Id. Before the time expired for a responsive pleading, the bank moved for summary judgment. Id.

The bank then served the original note, the mortgage, and an assignment of the mortgage fewer than twenty days before the scheduled hearing on the bank’s motion for summary judgment. Id. The trial court entered summary judgment. Id. The late service and filing of the documents constituted procedural error requiring reversal. Id. at 978.

Similarly, the bank here failed to serve its summary judgment evidence at least twenty days before the hearing on its motion for summary judgment. The trial court erred in entering summary judgment.^[1] Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1108 (Fla. 4th DCA 2010).

Reversed and Remanded.

WARNER and FORST, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

[1] Our opinion should not be construed as any comment for or against the merit of the homeowner’s other issues.