124 So. 3d 320
Fla. Dist. Ct. App.2013Background
- Deutsche Bank filed a mortgage foreclosure against Virgil and Lissette Bennett, claiming ownership/enforcement rights to the note and mortgage.
- Bank attached the note with two allonges and the mortgage; both allonges were endorsed by Elizabeth Causseaux on behalf of entities and included an endorsement in blank by Option One Mortgage.
- Bennetts argued Causseaux lacked authorization and that the Bank did not possess the original note.
- Bank moved for summary judgment; original loan documents were produced and mirrored the copies attached to the complaint; the trial court granted summary judgment.
- Bennetts moved for rehearing; issues raised there were not preserved for appeal, but properly preserved issues were reviewed de novo.
- The court relied on a statutory presumption in favor of authenticity/authorization of signatures under § 673.3081(1), Fla. Stat. (2008).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose and enforceability of the note | Bennett claim undermines bank's standing; bank had possession of the note. | Bennett contends Bank lacked evidence of possession/standing and authorization of endorsements. | Presumption in favor of bank's standing; summary judgment affirmed. |
| Effect of the § 673.3081(1) presumption on signatures | Endorsements are self-authenticating under the presumption. | Bennett failed to offer evidence to rebut the presumption that signatures were authentic/authorized. | Presumption applied; Bennetts did not overcome it; bank entitled to summary judgment. |
| Adequacy of Bennetts' evidentiary showing to overcome the presumption | N/A (Bennett arguments focus on lack of authorization). | No evidence offered to show Causseaux unauthorized to sign allonges. | No evidence produced; presumption remained unrebutted; summary judgment upheld. |
Key Cases Cited
- Rigby v. Wells Fargo Bank, 84 So.3d 1195 (Fla. 4th DCA 2012) (standing to foreclose required in mortgage actions)
- Riggs v. Aurora Loan Services, LLC, 36 So.3d 932 (Fla. 4th DCA 2010) (endorsement on a note self-authenticating under § 90.902(8))
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. 4th DCA 2012) (de novo review of summary judgment; standing emphasis)
- Fred McGilvray, Inc. v. Askew, 340 So.2d 475 (Fla.1976) (statutory presumption applied to nonpayment disputes)
- Locke v. Stuart, 113 So.2d 402 (Fla. 1st DCA 1959) (bursting bubble presumption concept in evidence law)
- Best v. Educ. Affiliates, Inc., 82 So.3d 143 (Fla. 4th DCA 2012) (preservation of issues in appellate review)