Florida Appeals Court Reverses Another Rubber Stamped Foreclosure As It Reminds Trial Judge That Evidence Is Required Before Granting Judgment!

In West Palm Beach, Florida, the South Florida Sun Sentinel reports:

• Banks need to show evidence they own and hold the mortgage on a home when asking judges to foreclose on a property, according to a ruling issued in the 4th District Court of Appeal In West Palm Beach on Wednesday.

• A three-judge appellate panel overturned an earlier summary judgment by Palm Beach Circuit Court Judge Thomas Barkdull III, that allowed US Bank National Association to repossess a Boca Raton couple's home. The foreclosure went through even though the lender did not show the original note or other acceptable proof of ownership.

• "Some judges have been lax about the rules of evidence," said Peter Snyder, the Boca Raton lawyer representing homeowner Guiseppe Servedio. "I think that what this case says is you better have the original note."

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• Although the Servedios' house was sold after foreclosure, Snyder won court approval for them to continue living there during their appeal. The appellate decision is not final for 15 days, giving the lender time to respond.

• [Foreclosure mill law firm] Shapiro & Fishman, one of four large Florida foreclosure law practices being investigated by the Florida attorney general for alleged inaccurate or false documents, is handling the Servedio case for US Bank. The firm could not be reached for comment Wednesday despite several attempts by phone and e-mail, but in the past has denied any wrongdoing.

• In the appellate opinion, the judges said that even though US Bank later gave the courts a copy of the original note, it was insufficient because it was submitted after Barkdull finalized the foreclosure. "Without evidence demonstrating [the bank's] status as holder and owner of the note, genuine issues of material fact remain," the judges wrote.(1)

For the story, see Banks must prove they own the mortgage before foreclosing.

For the court ruling, see Servedio v. US Bank National Association, 4D10-1898 (Fla. App. 4th DCA October 27, 2010).

(1) The court made these observations with regard to a lender's obligations when bringing an action to foreclose a mortgage:

• “The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010).

• A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091, Florida Statutes. State St. Bank & Trust Co. v. Lord, 851 So. 2d 790, 791 (Fla. 4th DCA 2003). Moreover, if the note does not name the plaintiff as the payee, the note must bear a special indorsement in favor of the plaintiff or a blank indorsement. Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010).

• Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note. Verizzo v. Bank of N.Y., 28 So. 3d 976 (Fla. 2d DCA 2010); Stanley v. Wells Fargo Bank, 937 So. 2d 708 (Fla. 5th DCA 2006).

• The record on appeal does not contain the original note, evidence of an assignment of the mortgage and note to appellee, or an affidavit of ownership by appellee. Appellee filed no other admissible “pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials” to support its contention that it owns and holds the note and mortgage. Fla. R. Civ. P. 1.510(c). “[I]t is apodictic that summary judgments may not be granted . . . absent the existence” of admissible evidence in the record. TRG-Brickell Point NE, Ltd v. Wajsblat, 34 So. 3d 53, 55 (Fla. 3d DCA 2010).

• Without evidence demonstrating appellee’s status as holder and owner of the note and mortgage, genuine issues of material fact remain, and summary judgment was improper.

• Appellee argues on appeal that it presented to the trial court a copy of the original note and an affidavit of ownership at the summary judgment hearing. Appellee concedes, however, that the documents were not filed with the clerk of the court until several days after the entry of summary judgment. The documents were not part of the record at the time the motion for summary judgment was granted, so we cannot determine whether the trial court considered those documents in rendering its decision. See Poteat v. Guardianship of Poteat, 771 So. 2d 569 (Fla. 4th DCA 2000) (noting that an appellate court may review only items considered by the trial court).

• Because appellant does not stipulate that the documents were considered at the hearing, and because appellee has not sought relief in the trial court to recreate the record, we must reverse the order granting summary judgment. We cannot rely on the representations of counsel alone. Wright v. Emory, 41 So. 3d 290, 292 (Fla. 4th DCA 2010) (“[An] attorney’s unsworn, unverified statements do not establish competent evidence.”).

• Even if the trial court considered the note and mortgage at the hearing, the documents were not authenticated, filed, and served more than twenty days before the hearing as required by Rules 1.510(c) and 1.510(e). Appellee’s failure to abide by these rules also necessitates reversing the order granting summary judgment. Verizzo, 28 So. 3d at 977-78; Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989).