Lizio v. Mccullom

• Citation: 36 So.3d 927
• Decision Date: 09 June 2010
• Docket Number: No. 4D09-1149.,4D09-1149.
• Parties: Stephen E. LIZIO, Appellant,v.Kevin A. McCULLOM and Wayna M. McCullom, Appellees.
• Court: Court of Appeal of Florida (US)

36 So.3d 927

Stephen E. LIZIO, Appellant,v.Kevin A. McCULLOM and Wayna M. McCullom, Appellees.

No. 4D09-1149.

District Court of Appeal of Florida Fourth District.

June 9, 2010.

Robert P. Bissonnette, of Robert P. Bissonnette, P.A., Fort Lauderdale, for appellant.

Jerome R. Schechter, of Jerome R. Schechter, P.A., Fort Lauderdale, for appellees.

LEVINE, J.

The issue presented is whether the trial court erred in granting appellees' motion to dismiss on the basis that appellant's production of the original note and mortgage, along with a valid written assignment of the note and mortgage from the estate of the original mortgagee, was insufficient to establish “current” ownership of the mortgage. We find that the production of the original note, mortgage, and assignment did constitute prima facie evidence of ownership, and the trial court's dismissal was reversible error.

Appellees executed a mortgage and a promissory note for $200,000 in favor of John Haner to purchase property in Wilton Manors in 2003. Subsequently, Haner died, and his estate assigned his interest in the note and mortgage to appellant. At some point, appellant filed a foreclosure action against appellees, claiming appellees failed to make required payments on the mortgage. The trial court denied appellant's motion for summary judgment, and this case proceeded to trial.¹

At trial, the personal representative for Haner's estate, Jeffrey Selzer, testified that the original note and mortgage were executed by appellees in 2003. Selzer stated that he executed an assignment of the mortgage to appellant in October 2007; the assignment was recorded a few days later. Selzer also testified that he received the original note and mortgage from Haner prior to his death, and the mortgage presented at trial was identical to the mortgage the decedent gave Selzer. Finally, Selzer concluded from reviewing Haner's documents that appellees defaulted on the note in January 2006. Appellant did not testify on his own behalf. Prior to resting, appellant offered into evidence original copies of the assignment, note, and mortgage.

Appellees moved to involuntarily dismiss the case. The trial court granted appellees' motion, finding that the assignment of the mortgage and note to appellant did not constitute prima facie evidence that appellant is the current owner and holder of the mortgage and note.

This court reviews the trial court's order on a motion to dismiss de novo. Brundage v. Bank of Am., 996 So.2d 877, 881 (Fla. 4th DCA 2008). “An involuntary dismissal is properly entered only where the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case” for which relief may be granted. Perez v. Perez, 973 So.2d 1227, 1231 (Fla. 4th DCA 2008). Thus, we must determine if appellant established a “prima facie case” requiring the trial court to deny the motion to dismiss.

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. Verizzo v. Bank of N.Y., 28 So.3d 976, 978 (Fla. 2d DCA 2010); Philogene v. ABN Amro Mortgage Group Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006). Where the defendant denies that the party seeking foreclosure has an ownership interest in the mortgage, the issue of ownership becomes an issue ...