Amstone v. The Bank of New York Mellon
182 So. 3d 804
| Fla. Dist. Ct. App. | 2016Background
- In 2008 First Horizon Home Loans (a division of First Tennessee Bank NA) filed foreclosure against Charles and Carolyn Amstone based on a December 5, 2006 note and mortgage. The original note and mortgage were filed with the complaint.
- The Amstones denied plaintiff’s ownership/holder status and asserted multiple affirmative defenses, including lack of standing, failure to provide notice of assignment under §559.715, failure to post a bond under §57.011, inadequate Paragraph 22 notice of default/acceleration, and TILA violations.
- Discovery showed First Horizon Home Loan Corporation merged into First Tennessee Bank NA (becoming First Horizon Home Loans) before the complaint; the Amstones received merger documents but did not dispute the merger or move to compel.
- In 2011 the mortgage was assigned to The Bank of New York Mellon; Nationstar submitted affidavits stating it held the note as attorney-in-fact for the Bank and served a Paragraph 22 notice. The Bank moved for summary judgment but did not address the Amstones’ affirmative defenses in its motion.
- At the summary judgment hearing the court found standing established and granted the Bank’s motion; the court made no specific findings resolving the Amstones’ affirmative defenses. The Second District reversed, holding standing was proved but genuine issues remained as to affirmative defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing at filing | Plaintiff (First Horizon/Bank) argued merger and later assignment show it had standing to sue | Amstones argued complaint named a different original lender (First Horizon Home Loan Corp.) and standing must exist at filing | Court: Standing established because merger occurred before filing and Nationstar acted as attorney-in-fact for Bank |
| Sufficiency of motion to address affirmative defenses | Bank argued its response and affidavits addressed defenses and thus summary judgment appropriate | Amstones argued Bank failed to factually refute many affirmative defenses in its motion and genuine issues remained | Court: Bank failed to refute affirmative defenses in its motion or at hearing; factual disputes remain; summary judgment improper |
| Proof of Paragraph 22 notice | Bank presented affidavit and copy of notice asserting proper service | Amstones submitted affidavits denying receipt and alleging defects in notice | Court: Affidavits create a factual dispute that was not resolved on summary judgment |
| Notice of assignment / statutory bond requirements | Bank contended assignment and service satisfied requirements; did not move on these defenses in summary judgment | Amstones argued failure to provide assignment notice per §559.715 and failure to post bond under §57.011 | Court: These defenses were not addressed by Bank on summary judgment, creating genuine issues of material fact |
Key Cases Cited
- Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011) (summary judgment must refute affirmative defenses or show they are legally insufficient)
- Servedio v. U.S. Bank Nat'l Ass'n, 46 So. 3d 1105 (Fla. 4th DCA 2010) (summary judgment reviewed de novo; draw inferences for non-movant)
- Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013) (standing must exist at the time of filing the foreclosure complaint)
- Corp. Express Office Prods., Inc. v. Phillips, 847 So. 2d 406 (Fla. 2003) (merger unites corporations into single corporate existence)
- Alejandre v. Deutsche Bank Trust Co. Ams., 44 So. 3d 1288 (Fla. 4th DCA 2010) (moving party must address mortgagor's affirmative defenses in summary judgment)