SHAKIL KHAN AND DINA KHAN, APPELLANT,
v.
BANK OF AMERICA, N.A., APPELLEE
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Shakil and Dina Khan appealed a summary judgment foreclosure entered in favor of Bank of America. The court reversed because Bank of America failed to establish standing to foreclose, as the note attached to its complaint showed the note had been endorsed to Wells Fargo Bank as trustee, contradicting Bank of America's allegation that it was the holder.
Bank of America did not establish standing to foreclose as a matter of law because the exhibit to its amended complaint conflicted with its allegations concerning standing. The proper party with standing to foreclose is the holder of the note and mortgage or the holder's representative, and when exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.
[1] A plaintiff moving for summary judgment before an answer is filed must establish that no genuine issue of material fact exists in the record and that the defendant could…
[2] The contents of exhibits attached to a complaint control over the allegations of the complaint when there is a conflict between them.
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Join FLexlaw to unlock all legal intelligence“The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder's representative.”
Establishes the legal standard for standing to foreclose in Florida
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Join FLexlaw to unlock all legal intelligenceBank of America filed an amended complaint to foreclose a mortgage on the Khans' home, alleging it was the owner and holder of the note and mortgage. …
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Shakil and Dina Khan appeal a final summary judgment of foreclosure entered in favor of Bank of America, N.A. We reverse.
*928In its amended complaint to foreclose a mortgage on the Khans’ home, Bank of America alleged that it was the owner and holder of the note and mortgage. However, the copy of the note attached to the amended complaint bears an endorsement from Bank of America to Wells Fargo Bank, N.A. as trustee for the holders of Banc of America Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2006-B. The Khans correctly raised the issue of Bank of America’s standing to prosecute the foreclosure based on the assignment of the note to Wells Fargo Bank.
The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder’s representative. See Taylor v. Deutsche Bank Nat. Trust. Co., 44 So.3d 618, 622 (Fla. 5th DCA 2010); BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010). While Bank of America alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the amended complaint contradicts that allegation. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2d DCA 2000). Because the exhibit to Bank of America’s amended complaint conflicts with its allegations concerning standing, Bank of America did not establish that it had standing to foreclose the mortgage as a matter of law. As a result, the trial court acted prematurely in entering the final summary judgment of foreclosure in favor of Bank of America. We, therefore, reverse the final summary judgment of foreclosure and remand for further proceedings.
REVERSED and REMANDED for further proceedings.
PALMER and EVANDER, JJ., concur.
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Moshe Mazine and Jaacov E. Bouskila v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011)…t of foreclosure styles the prevailing party as “M & I Bank,” not “M & I Marshall and Ilsley Bank.” To have standing to foreclose, it must be demonstrated that the plaintiff holds the note and mortgage in question. See Khan v. Bank of America, N.A., 58 So. 3d 927 (Fla. 5th DCA 2011), and Philogene v. ABN Amro Mtg. Group, Inc., 948 So. 2d 45 (Fla. 4th DCA 2006). Therefore, because M & I Bank had not demonstrated it possessed the standing to proceed in the foreclosure action, we must reverse on this issue as w…
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Adiel Gorel & Flca Tropical Holdings, LLC v. The Bank OF NEW York Mellon, 165 So. 3d 44 (Fla. 5th DCA 2015)…Lending Grp., LLLP, 125 So. 3d 965, 967 (Fla. 4th DCA 2013) (holding that bank who filed foreclosure complaint did not have standing to foreclose when original note contained special indorsement in favor of another party); Khan v. Bank of Am., N.A., 58 So. 3d 927, 928 (Fla. 5th DCA 2011) (holding that bank failed to establish it had standing to foreclose mortgage as matter of law where copy of note attached to amended complaint bore indorsement as [*47] signing note to another bank). Negotiation of a special…
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Ginnifer GEE v. U.S. Bank Nat'l Ass'n, 72 So. 3d 211 (Fla. 5th DCA 2011)….S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) (explaining that plaintiff may submit evidence of assignment from payee to plaintiff or affidavit of ownership to prove its status as holder of note); see also Khan v. Bank of Am., N.A., 58 So. 3d 927, 928 (Fla. 5th DCA 2011) (holding that bank failed to establish it had standing to foreclose mortgage as matter of law where copy of note attached to amended complaint bore endorsement assigning note to another bank); Verizzo, 28 So. 3d at 977 (find…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- BAC Funding Consortium Inc. Isaoa/Atima v. Ginelle Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010)
- Taylor v. Deutsche Bank Nat'l Tr. Co., 44 So. 3d 618 (Fla. 5th DCA 2010)
- Hunt Ridge AT Tall Pines, Inc. v. Hall, 766 So. 2d 399 (Fla. 2d DCA 2000)