Bristol v. Wells Fargo Bank, National Ass'n
137 So. 3d 1130
| Fla. Dist. Ct. App. | 2014Background
- Borrower executed mortgage and note; mortgage named MERS as nominee for the lender.
- Borrower defaulted; received notice of default; made a normal payment the day after the notice posted.
- Servicer and borrower entered a Forbearance to Modification Agreement; borrower missed one required on-time payment and later entered a HAMP trial plan but made trial payments late; servicer later notified borrower she did not qualify.
- MERS assigned the mortgage to the bank, which filed a foreclosure complaint; the bank later produced the original note with a blank, undated indorsement more than two years after filing.
- Borrower asserted affirmative defenses including lack of standing and lack of notice of default; trial court granted summary judgment for the bank and entered final foreclosure judgment.
Issues
| Issue | Plaintiff's Argument (Bank) | Defendant's Argument (Borrower) | Held |
|---|---|---|---|
| Standing to foreclose | Assignment of mortgage from MERS to bank proves standing | Bank failed to show it held the note before filing; original note had blank undated indorsement produced after filing | Reversed: genuine issue of material fact whether bank possessed the note before filing; assignment of mortgage alone insufficient |
| Effect of assignment of mortgage | Assignment of mortgage transfers rights needed to foreclose | Assignment of mortgage without note transfer does not confer right to enforce debt | Court: mortgage follows the note; assignment of mortgage alone does not prove standing |
| Adequacy of summary judgment given affirmative defenses | Bank presented documents and affidavit; entitled to judgment | Borrower’s affirmative defenses raised factual issues that were not conclusively refuted | Court: summary judgment inappropriate because material factual dispute remained |
| Notice of default / other defenses | Bank relied on notice and payment history | Borrower argued lack of notice, waiver, and other factual disputes | Court found no merit in those other issues on appeal, but did not affirm summary judgment because standing unresolved |
Key Cases Cited
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. 4th DCA) (standing to foreclose requires showings of assignment or equitable transfer prior to filing)
- Green v. JPMorgan Chase Bank, N.A., 109 So.3d 1285 (Fla. 5th DCA) (blank, undated indorsement insufficient to prove possession at filing)
- Vidal v. Liquidation Props., Inc., 104 So.3d 1274 (Fla. 4th DCA) (assignment of mortgage reflects transfer of mortgage, not necessarily the note)
- Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115 (Fla. 2d DCA) (mortgage follows assignment of the note; note assignment controls enforcement rights)
- Vance v. Fields, 172 So.2d 613 (Fla. 1st DCA) (assignment of mortgage without assignment of debt creates no right in assignee)
- Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288 (Fla. 4th DCA) (summary judgment should not be granted when affirmative defenses raise unresolved factual issues)