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FORECLOSURE LAW SUMMARIES

There must be an allegation in Plaintiffs Complaint that the mortgagee, Plaintiff in the foreclosure action, is the present owner/holder of the mortgage and note Edason v. Central Farmers Trust Co., 129 So. 698 (Fla. 1930) Copies of the Note and Mortgage must be attached to the Complaint Eigen v. Federal Deposit Ins. Corp., 492 So. 2d 826 (2d DCA 1986)

After February 11, 2010, Verification of Complaint by Plaintiff Florida Rule of Civil Procedure 1.110(b)

An Attorney in Fact may not make any affidavit as to the personal knowledge of the principal Florida Statute 709.2201(3)(b) Re-Establishment of Note Florida Statute 673.3091 Re-Establishment of Mortgage Florida Statute 71.011 Mortgage, as an operation of law, follows the transfer of the debt (Note) unless there be some plain and clear agreement to the contrary, if that be the intention of the parties Johns v. Gillian, 184 So. 140, 143 (Fla. S. Ct. 1938) In order for an Assignment of Mortgage to be valid, must be signed by a corporate officer and must have the common or corporate seal affixed to it Florida Statute 692.01 Assignment of Mortgage must be dated to be effective before the filing of the Complaint Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885 (Fla 4th DCA 1990) 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) Plaintiff must provide Note at least 20 days before hearing Florida Rule of Civil Procedure 1.510

Summary Judgment evidence Insufficient Glarum v. LaSalle Bank, 2011 W.L. 390 3161 When a Plaintiff moves for summary judgment before the defendant has filed an answer, the burden is upon the Plaintiff to make it appear to a certainty that no answer which the Defendant might properly serve could present a genuine issue of fact Settecasi v. Board of Public Instruction of Pinellas County, Fla. 2d DCA 1963) Plaintiff, who had filed motion for summary judgment before defendant filed an answer, was not entitled to summary judgment on basis that defendant had failed to file affidavits establishing genuine issues of material fact, where defendant noted issues of material fact that could be raised in an answer to the complaint Howell v. Ed Bebb, 35 So. 3d 167 (2010) In order to pursue a foreclosure action, 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. A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under Sect 673.3091. 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. 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 Servedio v. US Bank National Associaton, 46 So.3d 1105 (Fla. 4th DCA 2010) Any paper filed on the record will defeat a Lack of Prosecution motion Wilson v. Salamon, 923 So. 363 (S. Ct. Fl. 2005) In order to pursue a foreclosure action, 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. A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under Sect 673.3091. 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. 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 noteIn a mortgage foreclosure action, trial court could not enter summary judgment on banks claims seeking to reestablish lost note and mortgage and to reform legal description contained in mortgage and deed, since bank failed to mention those claims in its summary judgment motion Gee v. US Bank National Association, 2011 WL 4645602 (5th DCA Orlando) A trial courts refusal to permit an amendment of a pleading is an abuse of discretion unless it is clear that: (1) the amendment would prejudice the opposing party; (2) the privilege to amend has been abused; or (3) the amendment would be futile; Courts should be especially liberal in granting leave to

amend a pleading when leave to amend is sought at or before a hearing on a motion for summary judgment Laurencio v. Deutsche Bank National Trust Company, 65 So. 3d 1190 (2011) Rule on relation back of amended pleadings did not permit health-care provider to establish the right to maintain an action against automobile insurer retroactively by acquiring standing to file lawsuit after the fact, and, thus, the rule did not cure providers lack of standing when it filed suit before insured had assigned personal injury protection benefits to the provider; the provider needed to file new lawsuit after receiving the assignment Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So. 2d 1281 (2005) An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself Booker v. Sarasota, Inc., 707 So. 2d 886, 887 (Fla. 1st DCA 1998) Persons entitled to enforce a negotiable instrument: The term person entitled to enforce an instrument means: (1) The holder of the instrument (2) A nonholder in possession of the instrument who has the rights of a holder; or (3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to 673.3091 or 673.4181(4) Florida Statute 673.3011 The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holders representative Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); Philogene v. ABN Amro Mortgage Group, Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006) When exhibits are attached to a complaint, the content of the exhibits control over the allegations of the complaint Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2d DCA 2000) Genuine issues of material fact exist as to whether mortgagor was provided with a notice of acceleration, as required by the mortgage Sandoro v. HSBC Bank, USA National Association, 55 So. 3d 730 (2011) Triable issues existed as to whether mortgagor was provided with a notice of acceleration Frost v. Regions Bank, 15 So. 3d 905 (4th DCA 2009) Wroblewski v.

Morrisson v. U.S. Bank It is well established that during a summary judgment, when a Defendant has asserted Affirmative Defenses, the Plaintiff must either disprove those affirmative defenses by competent evidence or establish their legal insufficiency Pavolini v. Williams, 915 So. 2d 251, 253 (Fla. 5th DCA 2005) Deluxe Pursuant to Fla. R. of Civ. P. 1.190(a), appellants were required to respond to the amended complaint within 20 days of service of that pleading, and they did so in a timely fashion. Since the Plaintiff had filed an amended complaint and the time for responding to the amended complaint had not expired, entry of the default was improper because the amended complaint superseded the original complaint Isle of Sandalfoot v. Jess Leisch- General Contractors, Inc., 426 So. 2d 1223 (Fla. 4th DCA 1983)