In an opinion which would be comic were it not for the fact that the defendant's home is hanging in the balance, the Florida Second District Court of Appeals reversed a trial court's summary judgment, finding that the defects in the plaintiff's evidence precluded a summary judgment. The case is:
BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, Case No. 2D08-3553, COURT OF APPEAL OF FLORIDA, SECOND DISTRICT, 28 So. 3d 936; 2010 Fla. App. LEXIS 1447; 35 Fla. L. Weekly D 369, February 12, 2010, Opinion Filed, Released for Publication March 01, 2010. Released for Publication April 26, 2010
The hapless plaintiff in this case was U.S. Bank, N.A., as trustee for a C-BASS trust. U.S. Bank was represented by Florida Default Law Group, LP. Defendant BAC Funding Consortium Inc. seems to be a second lien holder. (Isn't it nice to see the 2nd lien holders interposing the standing defense!)
U.S. Bank filed an unverified foreclosure complaint in December 2007. This complaint also sought to re-esttablish a "lost note". U.S. Bank apparently attached only the alleged mortgage to this complaint. The mortgage identified Fremont Investment and Loan as the Lender and MERS as mortgagee.
Given that the evidence didn't support the plaintiff's allegations that it was the owner and holder, BAC Funding Consortium filed a motion to dismiss based upon lack of standing.
In its written response, U.S. Bank attached a purported mortgage assignment (seemingly the usual fabrication). However, the assignee shown on this purported assignment was BLANK (never entered). Moreover, the assignment was unsigned and unauthenticated. Whoops! It seems that the foreclosure mill and/or contract forgers had neglected to complete the execution of the fabricated evidence! U.S. Bank also neglected to file any affidavit proving up the blank assignment.
BAC never set its motion to dismiss for hearing.
Subsequently, U.S. Bank filed a motion for summary judgment. At the same time, the plaintiff dismissed its count seeking to re-establish the "lost note" and instead filed the original mortgage and note with the court. Neither of these identified U.S. Bank as the owner or holder. U.S. Bank didn't file any other executed copy of the blank assignment it had pled in its response to the motion to dismiss.
Nor did it apparently file any other document in support of its purported ownership.
Despite the fact that the only evidence before the court showed Fremont to be the Lender (and persumably owner) and/or MERS to be the mortgagee, the trial court granted a summary judgment in U.S. Bank's favor!
BAC Funding Consortium brought the appeal contending that U.S. Bank never established standing.
The appellate court found:
"While U.S. Bank alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists "Fremont Investment & Loan" as the "lender" and "MERS" as the "mortgagee." When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss."); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations "have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable"). Because the exhibit to U.S. Bank's complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.
Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank's standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor."
Remarkably, U.S. Bank contended that it needn't show that it validly held the note or mortgage to be entitled to foreclosure. The arrogance of the institutional plaintiffs and their foreclosure mill attorneys is unbelievable!
This case is a nice read and a lesson on just how CARELESS the foreclosure mills can be! SCRUTINIZE THE EVIDENCE CAREFULLY!