Servedio v. US Bank National Ass'n
2010 Fla. App. LEXIS 16267
| Fla. Dist. Ct. App. | 2010Background
- Appellee sought foreclosure and lost-note reestablishment in November 2008; complaint included a mortgage copy identifying Bankers Express Mortgage, Inc. as lender.
- Appellant answered, denying all allegations and raising defenses that appellee lacked privity and standing to foreclose.
- Appellee moved for summary judgment on foreclosure; supporting affidavit stated amount due but did not prove ownership/holding of note and mortgage; no documentary evidence attached.
- Record on appeal lacked the original promissory note, mortgage ownership evidence, or an assignment/ownership affidavit linking appellee to the note and mortgage.
- Trial court granted summary judgment; appellate record shows documents later produced post-judgment were not part of the record at the time of ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper without the original note. | Sought foreclosure supported by affidavit of amount due. | No proof appellee owns/holds the note and mortgage; need original note or proper documentation. | Summary judgment improper; lack of admissible evidence of ownership/holding required reversal. |
| Whether appellee had standing to foreclose given missing original note and assignments. | Posits ownership via records other than the original note. | Standing not proven without original note, assignment, or ownership affidavit. | Standing not proven; reversal required. |
Key Cases Cited
- Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla.2000) (summary judgment standard; admissible evidence required)
- Lizio v. McCullom, 36 So. 3d 927 (Fla. 4th DCA 2010) (party seeking foreclosure must show ownership of note and mortgage)
- State St. Bank & Trust Co. v. Lord, 851 So. 2d 790 (Fla. 4th DCA 2003) (need to tender original note or reestablish lost note)
- Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010) (note must bear indorsement or be indorsed to plaintiff or be blank)
- Verizzo v. Bank of N.Y., 28 So. 3d 976 (Fla. 2d DCA 2010) (evidence of ownership may prove status as holder)
- Stanley v. Wells Fargo Bank, 937 So. 2d 708 (Fla. 5th DCA 2006) (ownership evidence admissible to prove standing)
- Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989) (summary judgments require admissible evidence; record deficiency)
- Poteat v. Guardianship of Poteat, 771 So.2d 569 (Fla. 4th DCA 2000) (records must be recreated if necessary to review summary judgment)
- Edwards v. Simon, 961 So.2d 973 (Fla. 4th DCA 2007) (courts draw every inference in favor of non-movant in summary judgment)
- Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009) (party moving for summary judgment bears burden to show no genuine issue)
- 770 PPR, LLC v. TJCV Land Trust, 30 So.3d 613 (Fla. 4th DCA 2010) (summary judgment timing; may file at any time under Rule 1.510)