Unauthenticated allonge to note constitutes issue of material fact precluding summary judgment of foreclosure

BY APJLAW IN

FORECLOSURE florida foreclosure allonge note "summary judgment" "negotiable instrument"

Where original note was not endorsed, allonges were not dated and were never offered into evidence or otherwise authenticated, and plaintiff offered no admissible evidence to establish that allonges were effective prior to date of complaint genuine issue of material fact existed, requiring denial of summary judgment. The Court finds that even if the Note was a negotiable instrument, material issues of fact exist as to whether the Note was negotiated to the Plaintiff. The Note filed with the initial Complaint and the Amended Complaint is not endorsed nor is an allonge attached. If the Note is a negotiable instrument, the Plaintiff must prove up every negotiation of the Note. Accordingly, each transfer must be proven by a proper endorsement by allonge or on the note affixed to the note and by delivery to the endorsee. If it is not a negotiable instrument, the Plaintiff must show it was assigned properly either pursuant to U.C.C. Article 9 or contract law. Although the Notice of Filing the Original Note filed with the Clerk on February 7, 2011, includes allonges, the allonges are not dated and they were never offered into evidence or otherwise authenticated. See e.g. Morrison v. U.S. Bank, N.A., 66 So.3d 387, 388 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D1646b] (reversing summary judgment of foreclosure where defendant asserted she had not received a notice of default as required by mortgage, and bank had simply filed an unauthenticated notice letter). The Plaintiff provides no admissible evidence to establish that the allonges were effective prior to the date of the complaint. Without this evidence, the Plaintiff has not established standing to bring suit. See, Cutler v. U.S. Bank Nat. Assn, 2012 WL 4210304 (Fla. 2d DCA Sept. 21, 2012) [37 Fla. L. Weekly D2251a], citing, Feltus v. U.S. Bank, N.A., 80 So.3d 375, 377 n. 2 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D253a] (A cause of action must be complete before a party files a lawsuit . . . . Thus . . . [U.S. Bank] would have needed to prove the endorsement in blank was effectuated before the lawsuit was filed. (citations omitted)). Moreover, summary judgment is not appropriate unless the state of the evidence is such that the nonmoving party will not be able to prevail at trial as a matter of law. Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2764c]. In fact, it is the Plaintiffs summary judgment burden to establish irrefutably that the Defendants could not prevail were a trial on the merits conducted. Redland Ins. Co. v. Cem Site Constructors, Inc., 86 So. 3d 1259, 1261 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1115a] (citation omitted). Plaintiffs Motion for Summary Judgment is denied. LIBERTY ATLANTIC INVESTMENTS, LLC, vs. MAYPORT PROPERTIES, LLC, Defendants. Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2010-CA-001931, Division: FC-B. November 16, 2012. Harvey L. Jay, Judge. Counsel: Travis Santos, Hill Ward Henderson, Tampa, for Plaintiff. Jacqulyn Mack, Mack Law Firm, Englewood, Defendant.