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Docket Number

No. 4D10-1898.

Advocates

Peter J. Snyder of Peter J. Snyder, P.A., Boca Raton, for appellant. Heidi J. Weinzetl of Shapiro Fishman, LLP., Boca Raton, for appellee.

Judges

PER CURIAM.

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Smart Summary

Servedio v. US Bank National Association, No. 4D10-1898 (Fla. 4th DCA Oct. 27, 2010) — Per Curiam

Factual and Procedural Background

In November 2008 appellee filed an un-verified complaint seeking foreclosure of a mortgage and reestablishment of a lost promissory note. A copy of the mortgage attached to the complaint identified Bankers Express Mortgage, Inc. as the lender and mortgagee; an adjustable rate rider and a prepayment penalty rider likewise identified Bankers Express as lender and mortgagee. Appellant answered, denied the allegations, and asserted affirmative defenses alleging appellee was not in privity with the lender and mortgagee and lacked standing to foreclose.

Appellee moved for summary judgment as to foreclosure only and submitted an affidavit from a loan-servicing representative stating the total amount due on the mortgage. That affidavit did not indicate appellee owned or held the mortgage and note, and no documentary evidence was appended. The trial court granted summary judgment. The record on appeal did not contain the original promissory note, evidence of assignment to appellee, or an affidavit of ownership by appellee.

Appellee moved twice in this court to supplement the record to include a copy of the original note and mortgage it claimed to have filed at the summary judgment hearing; those motions were denied with leave to seek recreation of the record below. Appellee did not seek to recreate the record in the trial court nor designated transcripts to support its position. On appeal appellee argued it had presented the note and an affidavit of ownership at the hearing but conceded those documents were not filed with the clerk until several days after the summary judgment was entered.

Legal Issues Presented

Whether the trial court erred in granting final summary judgment of foreclosure where appellee failed to file with the court a copy of the original promissory note and mortgage prior to entry of judgment.

Arguments of the Parties

Appellant's Arguments

Denied the allegations in appellee's complaint.
Asserted affirmative defenses that appellee was not in privity with the lender/mortgagee and therefore lacked standing to foreclose.
Argued that the absence of the original note from the record created a genuine issue of material fact regarding appellee's standing, making summary judgment improper.

Appellee's Arguments

Filed an affidavit from a loan-servicing representative stating the total amount due on the mortgage in support of summary judgment.
On appeal, contended it presented to the trial court a copy of the original note and an affidavit of ownership at the summary judgment hearing, but conceded those documents were not filed with the clerk until several days after entry of summary judgment.
Relied on the trial court's consideration of those documents at the hearing (a contention the court could not verify from the record).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000)	Summary judgment is proper only if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.	The court invoked this standard to evaluate appellee's motion for summary judgment.
Edwards v. Simon, 961 So.2d 973 (Fla. 4th DCA 2007)	The court must draw every possible inference in favor of the non-moving party on summary judgment.	Used to emphasize that factual inferences must favor appellant when assessing whether genuine issues remained.
Moore v. Monis, 475 So.2d 666 (Fla. 1985)	Facts must be so crystallized that nothing remains but questions of law before summary judgment is appropriate.	Applied to stress that summary judgment was inappropriate because material facts were not crystallized.
Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009)	The moving party bears the burden of showing the complete absence of genuine issues of material fact; review of summary judgment is de novo.	Supported the court's burden analysis and stated the standard of appellate review.
770 PPR, LLC v. TJCV Land Trust, 30 So.3d 613 (Fla. 4th DCA 2010)	The party moving for summary judgment must factually refute or disprove affirmative defenses or show they are insufficient as a matter of law.	Applied to hold that appellee had to address appellant's affirmative defenses (e.g., lack of privity/standing).
Leal v. Deutsche Bank Nat'l Trust Co., 21 So.3d 907 (Fla. 3d DCA 2009)	Quoted in support of the principle that a movant must disprove affirmative defenses on summary judgment.	Quoted by the court as authority for the proposition reiterated in 770 PPR, LLC.
Lizio v. McCullom, 36 So.3d 927 (Fla. 4th DCA 2010)	The party seeking foreclosure must present evidence it owns and holds the note and mortgage to proceed.	Key precedent establishing appellee's obligation to prove ownership/holding of the note and mortgage.
State St. Bank Trust Co. v. Lord, 851 So.2d 790 (Fla. 4th DCA 2003)	Plaintiff must tender the original promissory note to the trial court or seek reestablishment of a lost note under section 673.3091, Florida Statutes.	Used to show appellee's obligation to tender the original note or pursue reestablishment procedures.
Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010)	If the note does not name the plaintiff as payee, it must bear a special indorsement in favor of the plaintiff or a blank indorsement.	Explained evidentiary requirements where the note does not name the plaintiff as payee.
Verizzo v. Bank of N.A., 28 So.3d 976 (Fla. 2d DCA 2010)	A plaintiff may submit evidence of an assignment from the payee or an affidavit of ownership to prove it is the holder of the note.	Cited as an alternative means by which appellee could have proven status as holder/owner.
Stanley v. Wells Fargo Bank, 937 So.2d 708 (Fla. 5th DCA 2006)	Affidavit of ownership or evidence of assignment may prove holder status.	Reinforced the alternatives available to a plaintiff to prove ownership/possession of the note.
TRG-Rrickell Peint NE, Ltd v. Wajsblat, 34 So.3d 53 (Fla. 3d DCA 2010)	Summary judgments may not be granted absent the existence of admissible evidence in the record.	Applied to conclude that summary judgment was improper because admissible evidence establishing ownership/holding was absent from the record.
Poteat v. Guardianship of Poteat (Fla. 4th DCA 2000)	An appellate court may review only items that were considered by the trial court.	Supported the court's refusal to consider documents allegedly presented at the hearing but not filed in the record before judgment.
Wright v. Emory, 41 So.3d 290 (Fla. 4th DCA 2010)	An attorney's unsworn, unverified statements do not establish competent evidence.	Used to reject reliance on counsel's representations in lieu of competent evidence in the record.
Mack v. Commercial Indus. Park, Inc., 541 So.2d 800 (Fla. 4th DCA 1989)	Procedural requirements governing submission of materials in summary judgment practice and recognition that refiling may be permitted.	Applied to note appellee's failure to comply with the timing rules for filing evidence and to state that refiling of a proper summary judgment motion is not precluded.

Court's Reasoning and Analysis

The court reviewed the summary judgment standards and related appellate principles: summary judgment requires no genuine issue of material fact and entitlement as a matter of law; the record must contain admissible evidence; and all reasonable inferences are drawn for the non-moving party. Applying those principles, the court identified the specific evidentiary obligations for a plaintiff seeking foreclosure: present the original promissory note to the court or pursue statutory reestablishment of a lost note, show a special or blank indorsement if the note did not name the plaintiff as payee, or alternatively provide evidence of assignment or an affidavit of ownership.

On the facts, appellee submitted only an affidavit from a loan-servicing representative stating the amount due but did not append documentary evidence proving ownership or possession of the note and mortgage. The appellate record contained no original note, no assignment, and no affidavit of ownership. Appellee later asserted it had presented the note and an affidavit of ownership at the summary judgment hearing, but those documents were not filed with the clerk until after the summary judgment was entered and therefore were not part of the record the court could review. The court emphasized that it could not rely on counsel's unsworn representations and that an appellate court may consider only items that were before the trial court and reflected in the record. Even assuming the trial court had seen the documents at the hearing, appellee failed to authenticate, file, and serve them more than twenty days before the hearing as required by Rules 1.510(c) and 1.510(e), which further mandated reversal.

Because appellee failed to produce admissible evidence in the record demonstrating its status as holder and owner of the note and mortgage and did not overcome appellant's affirmative defenses, genuine issues of material fact remained and summary judgment was improper.

Holding and Implications

Holding: The district court reversed the trial court's final summary judgment of foreclosure and remanded for further proceedings.

Implications: The direct consequence is that the foreclosure judgment is vacated and the case returns to the trial court for additional proceedings consistent with the opinion. The court made clear that appellee failed to satisfy evidentiary requirements for summary judgment (original note, assignment, or affidavit of ownership) and failed to comply with the timing and filing requirements for summary judgment materials. The opinion states that it does not preclude a refiling of a summary judgment motion if and when the necessary legal documents are properly before the court, but it does not announce any new legal rule beyond applying existing precedents and procedural requirements.

Disposition: Reversed and remanded. WARNER, POLEN and LEVINE, JJ., concur.

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Guiseppe SERVEDIO a/k/a Joseph Ser v. dio, Appellant,

PER CURIAM.

The issue presented in this appeal is whether the trial court erred in granting a final summary judgment of foreclosure where appellee failed to file with the court a copy of the original note and mortgage prior to the entry of judgment. Because the absence of the original note created a genuine issue of material fact regarding appellee's standing to foreclose on the mortgage, summary judgment was not proper. We reverse.

In November 2008, appellee filed an un-verified complaint against appellant, seeking both foreclosure of the mortgage and reestablishment of the lost promissory note. Appellant attached to the complaint a copy of the mortgage it sought to foreclose, but this document identified Bankers Express Mortgage, Inc. as the lender and mortgagee. An adjustable rate rider and prepayment penalty rider also identified Bankers Express as the lender and mortgagee.

Appellant answered and denied all of the allegations in appellee's complaint. In addition, appellant asserted affirmative defenses that appellee was not "in privity" with the lender and mortgagee and that appellee lacked standing to seek foreclosure.

Appellee filed for summary judgment on the foreclosure count alone. In support of its motion, appellee filed an affidavit from a representative of the loan servicing company who stated the total amount due on the mortgage. The affidavit did not indicate that appellee was an owner or holder of the mortgage and note, and no documentary evidence was appended to the affidavit. The trial court granted appellee's motion for summary judgment. The record on appeal contains no indication that appellee filed the original note with the trial court.

Appellee has twice moved this court to supplement the record on appeal to include a copy of the original note and mortgage it claims to have filed at the summary judgment hearing. This court denied the motions with leave for appellee to seek relinquishment of jurisdiction to the trial court to recreate the record. Appellee has not sought leave to recreate the record in the court below. Likewise, appellee has not designated any transcripts to support its position.

Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). The court may consider "affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence" on which the parties rely. Fla.R.Civ.P. 1.510(c). The court must draw "every possible inference" in favor of the non-moving party. Edwards v. Simon, 961 So.2d 973, 974 (Fla. 4th DCA 2007). The facts must be "so crystallized that nothing remains but questions of law." Moore v. Monis, 475 So.2d 666, 668 (Fla. 1985.) The moving party bears the burden of showing the complete absence of genuine issues of material fact. Frost v. Regions Bank. 15 So.3d 905. 906 (11a. 4th DCA 2009). Moreover, the "party moving for summary judgment must factually refute or disprove the affirmative defenses raised, or establish that the defenses are insufficient as a matter of law." 770 PPR, LLC v. TJCV Land Trust, 30 So.3d 613, 618 (Fla. 4th DCA 2010) (quoting Leal v. Deutsche Bank Nat'l Trust Co. 21 So.3d 907, 909 (Fla. 3d DCA 2009)). We review de novo an order granting summary judgment. Frost, 15 So.3d at 906.

"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," Lizio v. McCullom. 36 So.3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091, Florida Statutes. State St. Bank Trust Co. v. Lord. 851 So.2d 790, 791 (Fla. 4th DCA 2003). 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. Riggs v. Aurora Loan Servs., LLC. 36 So.3d 932, 933 (Fla. 4th DCA 2010). 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. Verizzo v. Bank of N.A., 28 So.3d 976 (Fla. 2d DCA 2010); Stanley v. Wells Fargo Bank. 937 So.2d 708 (Fla. 5th DCA 2006).

The record on appeal does not contain the original note, evidence of an assignment of the mortgage and note to appellee, or an affidavit of ownership by appellee. Appellee filed no other admissible "pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials" to support its contention that it owns and holds the note and mortgage. Fia. E. Civ. P. 1.510(c). `Tilt is apodictic that summary judgments ma;,7 not be granted . . absent the existence" of admissible evidence in the record. TRG-Rrickell Peint NE, Ltd v. Wajsblat, 34 So.3d 53. 55 (Fla. 3d DCA 2010). Without evidence demonstrating appellee's status as holder and owner of the note and mortgage, genuine issues of material fact remain, and summary judgment was improper.

Appellee argues on appeal that it presented to the trial court a copy of the original note and an affidavit of ownership at the summary judgment hearing. Appellee concedes, however, that the documents were not filed with the clerk of the court until several days after the entry of summary judgment. The documents were not pa2t of the record at the time the motion for summary judgment was granted, so we cannot determine whether the trial court considered those documents in rendering its decision. See Poteat v. Guardianship of Poteat. Ill So.2d 569 (Fla. 4th DCA 2000) (noting that an appellate court may review only items considered by the trial court). Because appellant does not stipulate that the documents were considered at the hearing, and because appellee has not sought relief in the trial court to recreate the record, we must reverse the order granting summary judgment. We cannot rely on the representations of counsel alone. Wright v. Emory. 41 So.3d 290. 292 (Fla. 4th DCA 2010) ("[An] attorney's unsworn, unverified statements do not establish competent evidence.").

Even if the trial court considered the note and mortgage at the hearing, the documents were not authenticated, filed, and served more than twenty days before the hearing as required by Rules 1.510(c) and 1.510(e). Appellee's failure to abide by these rules also necessitates reversing the order granting summary judgment. Verizzo, 28 So.3d at 977-78; Mack v. Commercial Indus. Park, Inc., 541 So.2d 800 (Fla. 4th DCA 1989).

Accordingly, we reverse the entry of final summary judgment in favor of appellee and remand for further proceedings. We note that a summary judgment motion may be filed "at any time" under Rule 1.510(a), and "this opinion does not preclude a refiling of such motion if and when the necessary legal documents are before the court." Mack, 541 So.2d at 800.

Reversed and remanded.

WARNER, POLEN and LE VINE, JJ., concur.

SERVEDIO v. U.S. BANK NAT. ASS'N