OMAR T. CABALLERO AND AUDREY K. CABALLERO, APPELLANTS,
v.
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR RASC 2006-EMX7, AND WESTCHASE COMMUNITY ASSOCIATION, INC., APPELLEES

Fla. 2d DCA | 2016-04-20
No. 2D15-266
SLEET and LUCAS, JJ., Concur.
189 So. 3d 1044 Florida District Court of Appeal, Second District (2016) Positive Treatment
Cited by 14 cases

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Synopsis

The Florida District Court of Appeal reversed a summary judgment foreclosure in favor of U.S. Bank, holding that U.S. Bank failed to establish standing to foreclose because it did not adequately prove the valid transfer of the promissory note through proper presentation of the original allonge.


Holding

U.S. Bank failed to establish standing to foreclose. The bank did not present the original allonge that accompanied the complaint, instead presenting a different undated allonge with a different loan number, making it impossible to verify that the allonge pertained to the correct loan or was attached at the time of complaint filing. Additionally, the assignment of mortgage was insufficient to establish standing because it only assigned the mortgage, not the note.


Headnotes

[1] A party seeking to foreclose on a note and mortgage must introduce the original note and mortgage into evidence or provide a satisfactory reason for their absence.

[2] An allonge is considered part of the note for purposes of establishing standing in a foreclosure action.

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Key Quotes

“In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence or a satisfactory reason must be given for failure to do so”

Establishes the foundational requirement for proving standing in foreclosure cases

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Facts & Procedural History

U.S. Bank filed a foreclosure complaint on October 27, 2011, against the Caballeros. The complaint included a copy of a note dated June 5, 2006, with …

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Opinion of the Court
KHOUZAM, Judge.

KHOUZAM, Judge.

‘ Omar T. Caballero and Audrey K. Caballero appeal the final summary judgment of foreclosure entered in favor of U.S. Bank National Association as Trustee for RASC 2006-EMX7. The Caballeros argue that U.S. Bank failed to prove that it had standing to foreclose because it failed to show that the note was validly transferred to it. We agree that, on the record before us, there was insufficient evidence to show U.S. Bank’s standing. Therefore, we must reverse and remand for further proceedings. We decline to comment on the remaining issues raised by the Caballeros.

U.S. Bank filed the foreclosure complaint on October 27, 2011. ' Attached to the complaint was a copy of the note and mortgage dated June 5, 2006, and identifying the lender as Mortgage Lenders Network USA, Inc. The note bore a special endorsement in favor of EMAX Financial Group, LLC. Also attached was- a July 20, 2006, allonge transferring the noté from Mortgage Lenders Network USA, Inc., to Residential Funding Corporation and then by special endorsement from Residential Funding Corporation to U.S. Bank National Association as Trustee. Finally, attached to the complaint was an assignment of the’mortgage from Mortgage Electronic Registration Systems, Inc., as nominee for Mortgage Lenders Network USA, Inc., to U.S. Bank National Association as Trustee for RASC 2006-EMX7.

On July 15, 2013, U.S. Bank filed the original note, a copy of the mortgage, and a copy of the assignment. Attached to the original note was an allonge, but it was not the same allonge that had been attached to the complaint. This new allonge was undated and bore a blank endorsement. from EMAX Financial Group, LLC. Though this allonge listed Mr: Caballero’s name and the correct property address, it contained a different loan number than the other documents.

These documents are insufficient to show that U.S. Bank had standing to foreclose. Though the copy of the note and the allonge attached to the complaint indicate that the note was transferred to U.S. Bank, U.S. Bank never filed the original allonge. “In order to prevail in a suit on a *1046note and mortgage, the original note and mortgage must be introduced into - evidence or a satisfactory reason must be given -for failure to do so,” Fair v. Kaufman, 647 So.2d 167, 168 (Fla. 2d DCA 1994). Because an allonge is essentially part: of the note, see Isaac v. Deutsche Bank Nat’l Trust Co., 74 So.3d 495, 496 n. 1 (Fla. 4th DCA 2011), it was necessary for U.S. Bank to file the original allonge along with the original note.

Instead of filing the original allonge with the original note, U.S. Bank filed a different allonge. This allonge contained a different loan number, so U.S. Bank failed to establish that this allonge pertained to the correct loan. And even though this al-longe did bear a blank endorsement, it was undated, and thus U.S. Bank failed to establish that this allonge and endorsement were attached to the note at the time the complaint was filed. See Seffar v. Residential Credit Sols., Inc., 160 So.3d 122, 125-26 (Fla. 4th DCA 2015) (holding that the, bank had failed to show standing where “[n]o evidence was presented that the allonge was executed and attached to the note prior to the filing of the initial complaint”). Finally, the assignment was insufficient to show standing because it only purported to assign the mortgage, not the note. See Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1041 (Fla. 4th DCA 2015) (“A bank does not have standing to foreclose where it relies on an assignment of the mortgage only.”). Because U.S. Bank failed to show standing, summary judgment should not have been entered in its favor.

Reversed and remanded for further proceedings.

SLEET and LUCAS, JJ., Concur.


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Citator

Cited By

  • Lane A. Houk v. Pennymac Corp., 210 So. 3d 726 (Fla. 2d DCA 2017)
    …Fla. 4th DCA 2014)). PennyMac did not acquire standing to foreclose based on an assignment of only the mortgage. See Eaddy v. Bank of America, N.A., 197 So. 3d 1278, 1280 (Fla. 2d DCA 2016); Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So. 3d 1044, 1046 (Fla. 2d DCA 2016); Geweye, 189 So. 3d at 233; Lamb, 174 So. 3d at 1041. Second, the only evidence of the assignment of the mortgage was the copy attached to the unsworn motion for substitution. Mr. Houk’s pleadings did not admit the genuinen…
  • Johnson v. Deutsche Bank Tr. Co., 248 So. 3d 1205 (Fla. 2d DCA 2018)
    …self. See, e.g., Houk v. PennyMac Corp., 210 So. 3d 726, 732 (Fla. 2d DCA 2017) (holding that plaintiff "did not acquire standing to foreclose based on an assignment of only the mortgage"); Caballero v. U.S. Bank Nat'l Ass'n ex rel. RASC 2006-EMX7, 189 So. 3d 1044, 1046 (Fla. 2d DCA 2016) ("[A]ssignment was insufficient to show standing because it only purported to assign the mortgage, not the note."); Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1041 (Fla. 4th DCA 2015) ("A bank does not have standing to…
  • Morroni v. Wilmington Sav. Fund Soc'y, FSB, 292 So. 3d 514 (Fla. 2d DCA 2020)
    …by now well established that an assignment that transfers only the mortgage and not the note is insufficient to show standing. See Verizzo v. Bank of N.Y. Mellon, 220 So. 3d 1262, 1266 (Fla. 2d DCA 2017) (citing Caballero v. U.S. Bank Nat'l Ass'n, 189 So. 3d 1044, 1046 (Fla. 2d DCA 2016)). So the assignments are unavailing as proof of standing here. Wilmington bore the burden of proving that it had standing at trial and failed to rebut expert testimony on that subject or otherwise to prove that the note and…

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