Gee v. US BANK NAT. ASS'N
72 So. 3d 211
| Fla. Dist. Ct. App. | 2011Background
- U.S. Bank sued Ginnifer Gee to reestablish a lost note and mortgage, reform the deed and mortgage description, and foreclose.
- Bank alleged Gee defaulted on the mortgage, with original assignments showing ownership through Advent Mortgage, Option One, American Home, and U.S. Bank.
- Record lacked the original Mortgage; Bank submitted copies and two assignments but failed to show how American Home was successor to Option One.
- Bank's summary judgment motion did not address reestablishment or reformation; the motion stated the original documents would be filed at the hearing.
- Trial court granted summary judgment foreclosing, reestablishing the Mortgage, reforming the deed/mortgage description, and foreclosing.
- Gee argued Bank lacked standing to foreclose and that summary judgment relied on grounds not raised in the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether U.S. Bank had standing to foreclose | Gee denied Bank's ownership; Bank relied on assignments and mortgage copies | Bank is holder/assignee entitled to foreclose with proper evidence | Bank failed to prove ownership; standing lacking; reversal |
| Whether summary judgment on reestablishment and reformation was proper when not raised in motion | Motion supported reestablishment/reformation grounds implicitly | Court may decide beyond motion if evidence supports it | Improper; grounds not raised with particularity in motion; reversal and remand |
Key Cases Cited
- Lizio v. McCullom, 36 So.3d 927 (Fla. 4th DCA 2010) (party seeking foreclosure must show it owns and holds note and mortgage)
- Verizzo v. Bank of N.Y., 28 So.3d 976 (Fla. 2d DCA 2010) (affidavit of ownership proves status as holder of note)
- Khan v. Bank of Am., N.A., 58 So.3d 927 (Fla. 5th DCA 2011) (bank failed to establish standing where note endorsement chain inadequate)
- State St. Bank & Trust Co. v. Lord, 851 So.2d 790 (Fla. 4th DCA 2003) (tender or proof of lost note required to establish standing)
- Ginnifer Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211 (Fla. 5th DCA 2011) (reversal and remand for lack of proof and improper grounds)