Gonzalez v. Deutsche Bank Nat'l Trust Co.
| Decision Date | 20 April 2012 |
| Docket Number | No. 2D10–5561.,2D10–5561. |
| Citation | 95 So.3d 251 |
| Parties | Elena GONZALEZ, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Indenture Trustee for American Home Mortgage Investment Trust 2006–1, Mortgage–Backed Notes, Series 2006–1; Manuel Gonzalez; City of Cape Coral, Florida; Board of County Commissioners of Lee County, Florida; Unknown Tenant # 1; Unknown Tenant # 2; Unknown Tenant # 3; Unknown Tenant # 4, Appellees. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Michael C. Tice, Fort Myers, for Appellant.
Mariya Weekes of Robertson, Anschutz & Schneid, P.L., Boca Raton (Debra Rescigno and Kevin Garbowit substituted as counsels of record), for Appellee Deutsche Bank National Trust Company.
No appearance for remaining Appellees.
Elena Gonzalez challenges the trial court's final order denying her motion for relief from judgment in which she challenged the final summary judgment of mortgage foreclosure that the court had entered against her and in favor of Deutsche Bank National Trust Company.1Because a genuine issue of material fact remains with regard to when Deutsche Bank took possession of the note, we reverse and remand for further proceedings.
On January 16, 2009, Deutsche Bank filed a two-count complaint against Gonzalez seeking to foreclose her mortgage and to reestablish the note. In its complaint, Deutsche Bank specifically alleged that “[t]he subject promissory note has been lost or destroyed and is not in the custody or control of the Plaintiff who is the owner and holder of the subject Note and mortgage and its whereabouts cannot be determined.”
However, on March 27, 2009, Deutsche Bank filed a Notice of Filing Original Note and Original Mortgage, attaching those documents and voluntarily dismissing count two of its complaint to reestablish the note. The last page of the attached note is a signature page signed by Gonzalez as the borrower. No other signatures appear on the page, but it is stamped “pay to the order of ___________ without recourse by: American Home Mortgage Acceptance, Inc. Rosa Montella Asst. Secretary.” “Deutsche Bank National Trust Company CS Indenture Trustee” is handwritten in the blank, and it appears that Rosa Montella has initialed the notation. Neither is dated, however.
On August 4, 2009, Deutsche Bank filed a notice of filing the assignment of mortgage by which Mortgage Electronic Registration Systems, Inc., assigned the instant mortgage to Deutsche Bank effective December 27, 2009—nearly a year after the foreclosure complaint was filed.
Gonzalez then filed her answer and affirmative defenses, alleging among other things that “the complaint fails to adequately show the chain of the title demonstrating that Plaintiff is in fact the real party in interest with standing to bring this action.”
Deutsche Bank ultimately moved for final summary judgment of foreclosure, and in opposition, Gonzalez argued that summary judgment is improper because the pleadings raise a question of material fact as to whether Deutsche Bank was the real party in interest at the time of the filing of the foreclosure action.
Following a hearing,2 the trial court entered its final judgment of mortgage foreclosure. Gonzalez then filed a motion entitled “Motion from Relief From Final Judgment,” in which she cited Florida Rules of Civil Procedure 1.540 and 1.530. With respect to rule 1.530, Gonzalez argued that she was entitled to rehearing because
the exhibits attached to Plaintiff's complaint and filed in support of its motion for summary judgment are inconsistent with Plaintiff's allegations as to ownership of the subject promissory note and mortgage, Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action. When exhibits are inconsistent with the plaintiff's allegations of material fact as to whom the real party in interest is, such allegations cancel each other out.
The trial court denied Gonzalez's motion.
On appeal, Gonzalez argues that the trial court erred because the December 27, 2009, mortgage assignment that Deutsche Bank relied on to establish its standing to maintain the foreclosure action was insufficient in that it did not take effect until well after the foreclosure action was initiated. She also argues that a genuine issue of material fact remains as to when the special endorsement assigning the note to Deutsche Bank was signed.
Deutsche Bank responds that the mortgage assignment is irrelevant and that when it filed the original promissory note on March 27, 2009, it perfected its status as the real party in interest because the last page of the note included an assignment of the note from American Home Mortgage Acceptance to Deutsche Bank.
We start with the basic premise that “[t]he holder of a note has standing to seek enforcement of the note.” Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007). And we do agree with Deutsche Bank that the fact that the assignment of the mortgage is not effective until December 27, 2009, is irrelevant and that the true issue is whether Deutsche Bank is the holder of the note. See WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004) ...
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