Gonzalez v. Deutsche Bank National Trust Co.
2012 Fla. App. LEXIS 6177
| Fla. Dist. Ct. App. | 2012Background
- Deutsche Bank filed a two‑count foreclosure complaint against Gonzalez on January 16, 2009, claiming the note was lost/destroyed and that it owned the mortgage.
- On March 27, 2009, DB filed a Notice of Filing Original Note and Original Mortgage, attached the documents, and dismissed the note reestablishment count; the note’s last page includes Gonzalez’s signature and stamps indicating a transfer to Deutsche Bank, but the transfers are not dated.
- On August 4, 2009, DB filed an assignment of mortgage indicating MERS assigned the mortgage to DB effective December 27, 2009.
- Gonzalez answered with affirmative defenses arguing DB lacked standing to foreclose because the chain of title did not show DB as real party in interest.
- DB moved for final summary judgment; Gonzalez argued a genuine issue of material fact existed regarding standing and ownership of the note.
- The trial court granted summary judgment; Gonzalez moved for relief from judgment under rules 1.540/1.530; the court denied relief and this appeal ensued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Deutsche Bank have standing to foreclose when suit was filed? | Gonzalez contends DB lacked standing due to uncertified transfer/endorsement of the note. | DB argues possession of the note or proper endorsement suffices for standing even if mortgage assignment later. | Genuine issue of material fact remained; summary judgment reversed. |
| Does the timing of the mortgage assignment affect standing? | Assignment not effective before suit; DB did not prove it possessed the note at filing. | Holding of the note, with an endorsement, suffices for standing regardless of assignment timing. | Issue of material fact existing; remand for further proceedings. |
Key Cases Cited
- Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151 (Fla. 2d DCA 2007) (holder of a note has standing to seek enforcement)
- WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680 (Fla. 4th DCA 2004) (mortgage passes as an incident to the debt absent contrary agreement)
- Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176 (Fla. 2d DCA 2010) (lacks standing when not owning or possessing the note at filing)
- Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115 (Fla. 2d DCA 2011) (summary judgment standard and necessity of no genuine issue of material fact)
- Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138 (Fla. 2d DCA 2000) (detailed summary judgment standard requiring doubt resolved against moving party)