93 So. 3d 453
Fla. Dist. Ct. App.2012Background
- Wells Fargo filed a mortgage foreclosure against the Zervases on October 6, 2009 for missing June 2009 payments.
- The Zervases sought a stay to obtain a modification, filing a motion on November 9, 2009.
- Wells Fargo moved for final summary judgment and attorneys’ fees on December 21, 2009; the court later stayed proceedings and gave ten days to answer on June 24, 2010.
- Zervases filed a motion to dismiss on July 1, 2010, and no answer was filed as of the August 2, 2010 summary judgment hearing.
- On August 2, 2010, the court granted Wells Fargo’s summary judgment; there was no order addressing the Zervases’ dismissal motion in the record.
- The Zervases later argued lack of standing and failure to satisfy paragraph 22’s notice-and-cure requirements, and Wells Fargo produced a lost-note affidavit and a supplemental note after filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Wells Fargo prove there was no genuine issue of material fact? | Wells Fargo contends all conditions precedent were met. | Zervas argue absence of answer precluded summary judgment and genuine issues exist. | No; summary judgment improper without an answer on file. |
| Was Wells Fargo's failure to address paragraph 22 notice fatal to summary judgment? | Plaintiff asserts compliance with conditions precedent; notice not addressed is insufficient. | Zervases contend lack of notice and opportunity to cure creates issues of fact. | Yes; failure to address the acceleration notice creates genuine issues. |
| Did Wells Fargo have standing to foreclose given lost-note and endorsement issues? | Wells Fargo had a note with an endorsement in blank; standing established. | There is no proof the blank endorsement was made to Wells Fargo before suit; standing is questionable. | No; record lacks proof endorsement before filing, undermining standing. |
Key Cases Cited
- Howell v. Ed Bebb, Inc., 35 So.3d 167 (Fla. 2d DCA 2010) (burden to show no genuine issue when no answer on file)
- BAC Funding Consortium Inc. v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010) (anticipate defendant's answer and show no factual issues)
- Goncharuk v. HSBC Mortg. Servs., Inc., 62 So.3d 680 (Fla. 2d DCA 2011) (plaintiff must show the record would have no genuine issue even if answer on file)
- Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011) (absence of addressing notice creates issues of material fact)
- Sandoro v. HSBC Bank, 55 So.3d 730 (Fla. 2d DCA 2011) (summary judgment facts require addressing notice and record details)
- Feltus v. U.S. Bank Nat’l Ass’n, 80 So.3d 375 (Fla. 2d DCA 2012) (endorsement in blank must be proven to be effectuated before suit)