Feltus v. US BANK NAT. ASS'N
80 So. 3d 375
| Fla. Dist. Ct. App. | 2012Background
- U.S. Bank filed an unverified complaint to reestablish a lost note and foreclose Feltus's mortgage on August 24, 2009, attaching a note and mortgage showing Countrywide Bank, N.A. as lender.
- The complaint alleged ownership of the note and loss of possession, but did not allege Countrywide had assigned the note to U.S. Bank.
- On November 16, 2009, U.S. Bank filed an affidavit of indebtedness stating it owned and held the note; a supplemental note copy was filed on November 18, 2009.
- A two-endorsed, blank-endorsed note appeared in the November 18, 2009 filing; U.S. Bank later claimed possession of the original note.
- On May 26, 2010, U.S. Bank moved for summary judgment; on June 4, 2010, it claimed possession of the original note in a reply, attempting to amend the complaint without leave.
- The trial court granted foreclosure based on these pleadings, but the appellate court reversed, citing unresolved ownership and pleading defects and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on ownership without genuine fact issues. | Feltus contends bank failed to prove ownership. | U.S. Bank asserts ownership with available note. | Not proper; conclusive absence of fact issues not shown. |
| Whether U.S. Bank properly amended its complaint to reflect possession of the note. | Amendment was not properly filed without leave. | Possession later asserted; amendment implied. | Amendment invalid; complaint not properly amended. |
| Whether the affidavit of indebtedness and endorsements established enforceability. | Evidence insufficient to prove entitlement to enforce. | Endorsed note and records show entitlement. | Insufficient to prove enforceability; issues remain. |
Key Cases Cited
- Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010) (possession with blank endorsement governs entitlement to enforce)
- Warner-Lambert Co. v. Patrick, 428 So.2d 718 (Fla. 4th DCA 1983) (pleadings filed in violation are nullities)
- Allenby Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211 (Fla. 4th DCA 2009) (summary judgment burden to show no genuine material fact)
- Fini v. Glascoe, 936 So.2d 52 (Fla. 4th DCA 2006) (summary judgment material factual issues)
- Shafran v. Parrish, 787 So.2d 177 (Fla. 2d DCA 2001) (affidavits must be based on personal knowledge)