Taylor v. Bayview Loan Servicing, LLC
2011 Fla. App. LEXIS 17849
| Fla. Dist. Ct. App. | 2011Background
- On Jan 4, 2006, Taylors signed a mortgage securing $194,350 and a note of the same date, with USMoney Source, Inc. d/b/a Soluna First as lender and MERS as nominee.
- An allonge dated Jan 4, 2006 endorsed the note to Bayview without recourse.
- Bayview filed an unsworn two-count complaint on Aug 1, 2007 seeking to establish/enforce the note and foreclose the mortgage, alleging ownership by endorsement/allonge and mortgage by assignment.
- Taylors answered with defenses including lack of standing and lack of proper notice before acceleration.
- Bayview moved for summary judgment on Nov 21, 2007; affidavits were later amended, none mentioning an assignment; Bayview later filed the original note, allonge, and mortgage.
- The trial court granted summary judgment after a February 22, 2010 hearing; an assignment of mortgage dated Aug 7, 2007 was filed after the complaint (Feb 23, 2010 notice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose when possession of the note/mortgage is challenged | Bayview held the note via endorsement/allonge and thus possessed the note and mortgage. | Taylors alleged lack of standing due to absence of a valid assignment at filing. | Bayview had standing through the note's endorsement and mortgage follows the note. |
| Lack of notice before acceleration as a condition precedent | Bayview alleged notice requirements were met. | Bayview failed to prove proper notice to the Taylors before acceleration. | Summary judgment improper; lack of notice issues remain. |
Key Cases Cited
- Country Place Cmty. Ass'n v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176 (Fla. 2d DCA 2010) (standing to foreclose when plaintiff lacks ownership at filing)
- Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990) (assignment timing affects foreclosure viability)
- Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011) (lack of notice defeats summary judgment on lack-of-notice defense)
- Goncharuk v. HSBC Mortg. Servs., Inc., 62 So. 3d 680 (Fla. 2d DCA 2011) (reversing summary judgment where notice issue not addressed)
- Lazuran v. Citimortgage, Inc., 35 So. 3d 189 (Fla. 4th DCA 2010) (reversal for failure to address lack of notice)
- Johns v. Gillian, 184 So. 140 (Fla. 1938) (mortgage follows the note absent contrary intent; equity follows debt)
- Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151 (Fla. 2d DCA 2007) (holder of note has standing to enforce the note)
- Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011) (party seeking foreclosure must show ownership of note and mortgage)