Feltus v. U.S. Bank National Association
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IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
January 27, 2012
JULIA FELTUS,
)
)
Appellant,
)
)
v.
)
)
U.S. BANK NATIONAL ASSOCIATION, as )
TRUSTEE of MASTR ADJUSTABLE RATE )
MORTGAGES TRUST 2007-3,
)
)
Appellees.
)
)
Case No. 2D10-3727
BY ORDER OF THE COURT:
Appellee's motion for rehearing is granted to the extent that the opinion dated
October 19, 2011, is withdrawn and the attached opinion is substituted in its place. No
further motions for rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
JAMES BIRKHOLD, CLERK
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JULIA FELTUS,
)
)
Appellant,
)
)
v.
)
)
U.S. BANK NATIONAL ASSOCIATION, as )
TRUSTEE of MASTR ADJUSTABLE RATE )
MORTGAGES TRUST 2007-3,
)
)
Appellee.
)
)
Case No. 2D10-3727
Opinion filed January 27, 2012.
Appeal from the Circuit Court for DeSoto
County; James S. Parker, Judge.
Jacqulyn Mack of The Mack Law Firm,
Englewood, for Appellant.
Roy A. Diaz and Diana B. Matson of
Smith, Hiatt & Diaz, P.A., Ft. Lauderdale
for Appellee.
WHATLEY, Judge.
Julia Feltus appeals a final judgment of foreclosure in favor of U.S. Bank
National Association, as Trustee of Mastr Adjustable Rate Mortgages Trust 2007-3
entered upon U.S. Bank's motion for summary judgment. We reverse because U.S.
Bank failed to show conclusively the absence of a genuine issue of material fact and
that it was entitled to foreclosure as a matter of law.
On August 24, 2009, U.S. Bank filed an unverified complaint seeking to
reestablish a lost promissory note and to foreclose the mortgage on Feltus's home.
U.S. Bank attached to the complaint a copy of the note and the mortgage, but both
documents showed the lender to be Countrywide Bank, N.A. In the count to reestablish
the note pursuant to section 673.3091, Florida Statutes (2009), U.S. Bank alleged that
the note was executed by Feltus on February 16, 2007; U.S. Bank is the owner and
holder of the note; the original note has been lost and is not in U.S. Bank's custody or
control; the note was continuously in the possession and control of U.S. Bank's assignor
and predecessor from the date of execution until the loss, at which time the assignor
and predecessor was entitled to enforce the note; and the note has not been paid or
otherwise satisfied, assigned, or transferred, or lawfully seized. Notably, these
allegations did not include an allegation that Countrywide had assigned the note to U.S.
Bank.
After Feltus filed a motion to dismiss alleging that U.S. Bank had failed to
establish that it owned or held the subject note, on November 16, 2009, U.S. Bank filed
an affidavit of indebtedness executed by Kathy Repka, an assistant secretary of BAC
Home Loan Servicing, L.P., f/k/a Countrywide Home Loan Servicing, L.P. Repka
asserted that her affidavit was based on the loan payment records of the servicing
agent and her familiarity with those records. After she explained that the purpose of the
records was "to monitor and maintain the account relating to a note and mortgage that
are the subject matter of the pending case," Repka asserted that U.S. Bank owns and
holds the note described in its complaint. Then on November 18, 2009, U.S. Bank filed
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another copy of the note as a supplemental exhibit to its complaint.1 In contrast to the
copy attached to the complaint that contained no endorsements, this copy contained
two endorsements that were side by side on the last page—the first stated "PAY TO
THE ORDER OF: COUNTRYWIDE HOME LOANS, INC. WITHOUT RECOURSE
COUNTRYWIDE BANK, N.A." and the second stated "PAY TO THE ORDER OF:
__________ WITHOUT RECOURSE COUNTRYWIDE HOME LOANS, INC."
Notwithstanding this filing, eight days after Feltus filed her answer and affirmative
defenses, on May 26, 2010, U.S. Bank filed a motion for summary final judgment
alleging that it "owns and holds a promissory note and mortgage" and that the original
note had been lost and is not in U.S. Bank's control. But on June 4, 2010, U.S. Bank
filed a reply to Feltus's affirmative defenses in which it asserted that it is now in
possession of the original note, a copy of which it attached and which is the same note
it filed on November 18, 2009. U.S. Bank further asserted that because the note is
endorsed in blank and it is in possession of the note, it is the bearer and entitled to
foreclose the mortgage. See Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932, 933
(Fla. 4th DCA 2010) (noting that pursuant to Uniform Commercial Code, negotiation of
note by transfer of possession with blank endorsement makes transferee the holder of
the note entitled to enforce it).
U.S. Bank's reply of June 4, 2010, was the only pleading in which it
alleged that the note was no longer lost, and it was the only pleading to which a copy of
the alleged original note was attached. The reply could not serve as an amended
1
This "filing" did not comply with Florida Rule of Civil Procedure 1.190(a)
and thus was ineffective to amend U.S. Bank's complaint.
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complaint because U.S. Bank had not secured leave of court or Feltus's written consent
to amend its complaint after Feltus filed her answer and affirmative defenses. See Fla.
R. Civ. P. 1.190(a). A pleading filed in violation of rule 1.190(a) is a nullity, and the
controversy should be determined based on the properly filed pleadings. WarnerLambert Co. v. Patrick, 428 So. 2d 718 (Fla. 4th DCA 1983).
Before a court may grant summary judgment, the pleadings, depositions,
answers to interrogatories, admissions, and any affidavits must " 'conclusively show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.' " Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8
So. 3d 1211, 1213 (Fla. 4th DCA 2009) (quoting Fini v. Glascoe, 936 So. 2d 52, 54 (Fla.
4th DCA 2006)). The party moving for summary judgment bears the burden to show
conclusively that there is a complete absence of any genuine issue of material fact. Id.
The properly filed pleadings before the court when it heard U.S. Bank's
motion for summary judgment were a complaint seeking to reestablish a lost note to
which was attached a copy of a note made payable to Countrywide, N.A., Feltus's
answer and affirmative defenses alleging that the note attached to the complaint
contradicts the allegation of the complaint that U.S. Bank is the owner of the note, a
motion for summary judgment alleging a lost note of which U.S. Bank is the owner, and
an affidavit of indebtedness alleging that U.S. Bank was the owner and holder of the
note described in the complaint. The endorsed note that U.S. Bank claimed was now in
its possession was not properly before the court at the summary judgment hearing
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because U.S. Bank never properly amended its complaint.2 In addition, the complaint
failed to allege that U.S. Bank "was entitled to enforce the instrument when loss of
possession occurred, or has directly or indirectly acquired ownership of the instrument
from a person who was entitled to enforce the instrument when loss of possession
occurred." § 673.3091(a). The affidavit of indebtedness provided no assistance in this
regard because the affiant did not assert any personal knowledge of how U.S. Bank
would have come to own or hold the note. See Shafran v. Parrish, 787 So. 2d 177, 179
(Fla. 2d DCA 2001) ("When affidavits are filed to establish the factual basis of the
motion [for summary judgment], they must be made on personal knowledge,
demonstrate the affiant's competency to testify, and be otherwise admissible in
evidence.").
The trial court erred in entering final judgment of foreclosure because the
documents before it did not establish conclusively that there was no genuine issue of
material fact and that U.S. Bank was entitled to foreclose Feltus's mortgage as a matter
of law. Accordingly, we reverse and remand for further proceedings consistent with this
opinion.
CASANUEVA and CRENSHAW, JJ., Concur.
2
A cause of action must be complete before a party files a lawsuit. See
Trawick, Fla. Prac. and Proc., § 14:8 (2010 ed.); see also § 95.031(1), Fla. Stat. (2009).
Thus, even if U.S. Bank had properly amended its complaint to travel on the original
note endorsed in blank, it would have needed to prove the endorsement in blank was
effectuated before the lawsuit was filed.
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