VENTURE HOLDINGS & ACQUISITIONS v. Aim
75 So. 3d 773
| Fla. Dist. Ct. App. | 2011Background
- Consolidated foreclosure actions involving A.I.M. Funding Group, LLC ( plaintiff) against Venture Holdings & Acquisitions Group, LLC and Vincenzo Gurrera; and Real Investments, LLC and Alexander Gonzalez; all alleging ownership of the mortgage note and mortgage.
- A.I.M. assigned its promissory note and mortgage as collateral for a loan before filing suit; the allonge indicated indorsement to a third party.
- Borrowers defaulted on three loans secured by real properties; two cases involved Real Investments and one involved Venture/Gurrera.
- A.I.M. sought foreclosure, moving for default where appropriate; in each case the court granted summary judgment in favor of A.I.M.
- A.I.M. did not produce the original promissory notes at summary judgment, nor account for their absence, and the note was indorsed to a third party on the allonge.
- The appellate court reversed and remanded, holding A.I.M. lacked standing at filing and failed to prove it possessed the original notes; some waivers of standing defenses existed by defaulted defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A.I.M. had standing to foreclose at filing given pre-filing assignment | Gurrera, Venture, Real Gonzalez argued lack of standing | Gurrera, Gonzalez argued A.I.M. lacked original note ownership | Reversed; A.I.M. lacked standing at filing; case remanded for dismissal or proper proceedings |
| Whether summary judgments were proper without production or accounting for the original note | A.I.M. owned the note evidenced by assignment/allonge | No production or accounting for absence of original note | Reversed; summary judgments vacated; issues remanded for dismissal or proper proof |
| Effect of default on standing challenge in foreclosure suits | Defaults did not waive standing defenses per case law | Waivers may occur when parties do not contest standing | Waived to extent per Glynn; some waivers recognized; overall reversal persists |
| Appropriate disposition on remand given unresolved ownership | A.I.M. may refile with original notes | Remand with potential dismissal without prejudice | Remanded; actions may be dismissed without prejudice or proceeded upon proper proof |
| Impact of missing original notes on court’s ability to grant judgment | Note production unnecessary if evidence shows possession | Note production essential to show right to judgment | Critical defect; reversed for all cases |
Key Cases Cited
- Lenfesty v. Coe, 34 Fla. 363, 16 So. 277 (1894) (production of note essential to prove ownership at hearing)
- Glynn v. First Union Nat'l Bank, 912 So.2d 357 (Fla. 4th DCA 2005) (waiver of standing defenses where no contest filed)
- Laing v. Gainey Builders, Inc., 184 So.2d 897 (Fla. 1st DCA 1966) (assignee of mortgage and note is real party in interest to foreclose)
- A & B Discount Lumber & Supply, Inc. v. Mitchell, 799 So.2d 301 (Fla. 5th DCA 2001) (assignee holds mortgage and note; proper party to foreclose)
- Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990) (assignment pre-dates foreclosure action; standing required at inception)