Viola v. U.S. Bank National Ass'n
133 So. 3d 1018
| Fla. Dist. Ct. App. | 2014Background
- In 2008 the bank filed a two-count complaint to re-establish a lost note and foreclose a mortgage, alleging it owned the note and mortgage but attaching no note to the complaint.
- The bank initially attached an uncertified, unsigned copy of the first twelve pages of the mortgage but no promissory note.
- The bank moved for final summary judgment in February 2009 supported by affidavits (affidavit of indebtedness and lost-note affidavit) that did not attest the bank owned the note when the complaint was filed and falsely stated a copy of the note was attached.
- Two years later the bank filed an amended affidavit and, on June 9, 2011 (twelve days before the hearing), filed copies of the original note, mortgage, and an undated allonge with endorsements.
- The court held a hearing June 21, 2011, and entered final summary judgment of foreclosure; homeowner appealed, arguing the bank violated Florida Rule of Civil Procedure 1.510(c) and (e) by serving summary-judgment evidence fewer than twenty days before the hearing and failing to authenticate/attach required documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the bank complied with Fla. R. Civ. P. 1.510(c) and (e) requiring service of summary-judgment evidence at least 20 days before the hearing | Homeowner: bank served the note and mortgage only 12 days before the hearing and failed to attach/authenticate documents to affidavits, so evidence was untimely and unauthenticated | Bank: documents were timely filed and self-authenticating; prior filings obviated reattachment; homeowner failed to timely object and to provide hearing transcript | Reversed: bank did not comply with the 20-day service rule and judgment was entered in error |
Key Cases Cited
- Verizzo v. Bank of New York, 28 So.3d 976 (Fla. 2d DCA 2010) (late service of loan documents before summary-judgment hearing required reversal)
- Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105 (Fla. 4th DCA 2010) (same principle regarding timeliness/authentication of summary-judgment evidence)