Lovette v. National Collegiate Student Loan Trust 2004-1
149 So. 3d 735
Fla. Dist. Ct. App.2014Background
- Michael borrowed $30,000 from Bank One, N.A. on an education promissory note; his father James cosigned and guaranteed payment.
- Michael defaulted; National Collegiate Student Loan Trust 2004-1 (Loan Trust) sued both on a one-count complaint alleging ownership of the note, default, acceleration, and satisfaction of conditions precedent.
- Loan Trust moved for summary judgment and attached an affidavit from its loan servicer; the Lovettes opposed, arguing Loan Trust lacked standing and had not shown its relationship to Bank One.
- The trial court granted summary final judgment for Loan Trust; the Lovettes moved for rehearing arguing Loan Trust failed to prove ownership of the note at the hearing; rehearing was denied.
- On appeal the sole dispositive issue was whether Loan Trust carried its burden at summary judgment to prove it owned or otherwise had the right to enforce the promissory note at the time of the complaint/hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing/ownership of the note at time of suit and hearing | Lovettes: Loan Trust never proved it owned or held the original note; raised lack of standing below | Loan Trust: Lovettes waived standing by not filing affidavit or adequately raising issue earlier | Court: Loan Trust failed to show how it obtained the note or that it was holder at complaint/hearing; summary judgment improper |
| Burden at summary judgment | Lovettes: movant must conclusively show absence of genuine issue about ownership | Loan Trust: waiver excuses detailed proof at hearing | Court: movant bears burden to prove holder status and right to enforce at hearing even if standing as of filing was arguably waived |
| Requirement to tender original note | Lovettes: Loan Trust did not tender the original promissory note | Loan Trust: affidavit sufficient; tender not required given record | Court: focused on lack of evidence of acquisition/possession; reversed on ownership ground (did not fully decide tender issue) |
| Statute-based notice/assignment (section 559.715) | Lovettes: no allegation/notice of assignment under statute | Loan Trust: not dispositive in face of ownership proof | Court: did not reach this issue as ownership dispositive |
Key Cases Cited
- Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) (standard of review for summary judgment is de novo)
- Albelo v. S. Bell, 682 So.2d 1126 (Fla. 4th DCA 1996) (movant must conclusively show absence of genuine issue of material fact)
- Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138 (Fla. 2d DCA 2000) (doubts resolve against movant on summary judgment)
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. 4th DCA 2012) (movant must show it was holder of the note when complaint was filed)
- Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010) (standing to foreclose requires holder or nonholder in possession with holder rights)
- Beaumont v. Bank of New York Mellon, 81 So.3d 553 (Fla. 5th DCA 2012) (failure to plead standing can operate as waiver but movant must still prove enforcement rights)
- Boumarate v. HSBC Bank USA, N.A., 109 So.3d 1239 (Fla. 5th DCA 2013) (movant must prove right to enforce the note at the summary judgment hearing)