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FL 5th DCA Appeal Reverses “Trial Court Acted Prematurely, Note Endorsed to Non-Plaintiff Wells Fargo” KHAN v. BANK OF AMERICA

FL 5th DCA Appeal Reverses “Trial Court Acted Prematurely, Note Endorsed to Non-Plaintiff Wells Fargo” KHAN v. BANK OF AMERICA


SHAKIL KHAN AND DINA KHAN,
Appellant,

v. Case No. 5D10-3288

BANK OF AMERICA, N.A.,
Appellee.

Opinion filed April 8, 2011

Non-Final Appeal from the Circuit Court
for Orange County,
Emerson R. Thompson, Jr., Senior Judge.

Craig R. Lynd, Matthew D. Valdes and
Jonathon C. Blevins, of Kaufman, Englett
& Lynd, PLLC, Orlando, for Appellant.

No Appearance for Appellee.

ORFINGER, J.

Shakil and Dina Khan appeal a final summary judgment of foreclosure entered in favor of Bank of America, N.A. We reverse.

In its amended complaint to foreclose a mortgage on the Khans’ home, Bank of America alleged that it was the owner and holder of the note and mortgage. However, the copy of the note attached to the amended complaint bears an endorsement from Bank of America to Wells Fargo Bank, N.A. as trustee for the holders of Banc of America Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2006-B.

The Khans correctly raised the issue of Bank of America’s standing to prosecute the foreclosure based on the assignment of the note to Wells Fargo Bank.

The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder’s representative. See Taylor v. Deutsche Bank Nat. Trust. Co., 44 So. 3d 618, 622 (Fla. 5th DCA 2010); BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010). While Bank of America alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the amended complaint contradicts that allegation. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000). Because the exhibit to Bank of America’s amended complaint conflicts with its allegations concerning standing, Bank of America did not establish that it had standing to foreclose the mortgage as a matter of law. As a result, the trial court acted prematurely in entering the final summary judgment of foreclosure in favor of Bank of America. We, therefore, reverse the final summary judgment of foreclosure and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

PALMER and EVANDER, JJ., concur.

[ipaper docId=52628304 access_key=key-1xo04vpgr9vsd97fpcdr height=600 width=600 /]

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FL 5thDCA Appeals Court Reversal “PURCHASERS’ DUE PROCESS VIOLATED” GIANTHONY HOMES, INC. v. US Bank National Association

FL 5thDCA Appeals Court Reversal “PURCHASERS’ DUE PROCESS VIOLATED” GIANTHONY HOMES, INC. v. US Bank National Association


IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

JANUARY TERM 2011

GIANTHONY HOMES, INC. and
AVONDALE DIVERSIFIED, INC
,
Appellants,

v.                                      Case No. 5D10-715

U.S. BANK NATIONAL
ASSOCIATION
, etc., et al.,
Appellees.
________________________________/
Opinion filed January 28, 2011

EVANDER, J.

Excerpt:

Based on these findings, it is clear that appellants’ procedural due process rights
were violated.
Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So. 3d
1271 (Fla. 2d DCA 2009) (purchasers’ right to procedural due process violated where
trial court entered order that vacated foreclosure sale and certificate of title when
purchaser had neither notice nor opportunity to be heard). Appellants were entitled to
receive a copy of U.S. Bank’s motion and an opportunity to be heard thereon. Dep’t. of
Transp. v. Baird, 992 So. 2d 378, 381 (Fla. 5th DCA 2008).

REVERSED and REMANDED.

LAWSON and JACOBUS, JJ., concur.

[ipaper docId=48109862 access_key=key-2cjrin0zpg8gccif8c04 height=600 width=600 /]

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FL APPEALS 5th DCA REVERSAL “Race-Notice, Unrecorded Instrument” ARGENT v. WACHOVIA

FL APPEALS 5th DCA REVERSAL “Race-Notice, Unrecorded Instrument” ARGENT v. WACHOVIA


ARGENT MORTGAGE COMPANY, LLC, Appellant,
v.
WACHOVIA BANK N.A., ETC., Appellee.

Case No. 5D09-4014.

District Court of Appeal of Florida, Fifth District.

Opinion filed December 30, 2010.

Jeffrey R. Dollinger, of Scruggs & Carmichael, P.A., Gainesville, for Appellant.
W. David Vaughn, of W. David Vaughn, P.A., Jacksonville, for Appellee.

GRIFFIN, J.
Argent Mortgage Company, LLC [“Argent”] appeals the trial court’s entry of judgment in favor of Wachovia Bank National Association, as Trustee Under Pooling and Servicing Agreement Dated as of November 1, 2004, Asset Backed Pass-Through Certificates Series 2004-WWF1 [“Wachovia”]. Argent argues that the trial court erred by finding that the mortgage now owned by Wachovia has priority over Argent’s mortgage. We reverse.
Continue reading below…

[ipaper docId=46108209 access_key=key-1r78fl2qmlex7j9bbjw1 height=600 width=600 /]

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FL FORECLOSURE “GROSS” RUBBER STAMP REVERSED! 5th DCA Wells Fargo vs. Lupica 6/2010

FL FORECLOSURE “GROSS” RUBBER STAMP REVERSED! 5th DCA Wells Fargo vs. Lupica 6/2010


We find that the denial of these motions constituted a gross abuse of discretion, we reverse.

[ipaper docId=33016514 access_key=key-xmq2izaefqys3tk7jfz height=600 width=600 /]

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Posted in case, foreclosure, foreclosure fraud, foreclosures, reversed court decision, wells fargoComments (0)


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