jacqueline m hurt sc 3 - florida state supreme court v. brody 347 so. 2d 689 (fla. 4th dca 1977)...
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Appeal No. PN 2 23
IN THE FLORIDA SUPREME COURT OF APPEALS
Jeffrey C. Hurt
Jacqueline M HurtSC 3
Appellant
V.
U S Bank National Association as Trustee on Behalf of the Holders of the Home
Equity Asset Trust 2005-2008
Appellee
APPEAL IN CAUSE NO.
IN THE FLORIDA SUPREME COURT, FLORIDA
APPELLANTS' OPENING BRIEF
Jeffrey C. Hurt
437 Ebbtide Drive
North Palm Beach, FI 33408
Office 561-632-2370
cciam1@yahoo.com
TABLEOFCONTENTS
Table of Contents . . . . . . . . . 2
Table of Citations . . . . . . . . .3-8
Table of Cases . . . . . . . . . .3-8
Table of Statutes . . . . . . . . .9
Statement of the Case and Statement of Facts . . . .9-19
Standard on Appeal . . . . . . . . .20
Arguments . . . . . . . . . . .21
Issue 1:
The Appellee presented evidence
that it was not entitled to enforce
the promissory note in question. . . . . . .21-22
Issue 2:
MERS did not pass an enforceable
interest in the promissory note to
the Appellee. . . . . . . . . .22 -25
Summary of the Arguments. . . . . . . . 25-26
Conclusion . . . . . . . . . .27
Certificate of Service . . . . . . . . . 28
Certificate ofFont Compliance . . . . . . .28
2
TABLE OF CITATIONS
TABLE OF CASES
DeClaire v. Yohanan
453 So. 2d 375 (Fla. 1984) . . . . . .
Martinez v. Scanlon
582 So.2d 1167, 1170-71
Wahl v. Round Valley Bank
38 Ariz. 411, 300 P.955 (1931)
Tube City Mining & Milling Co. v. Otterson
16 Ariz. 305, 146 P. 203 (1914)
Milliken v. Meyer
311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940)
Hobbs v. U.S. Office of Personnel Management
485 F. Supp. 456 (M.D. Fla. 1980)
Ramagli Realty v. Craver
121 So. 2d. 648 (Fla. 1960)
Village of Willowbrook
37 Ill. App.3d 393 (1962)
Your Construction Center, Inc. v. Gross
316 So. 2d 596 (Fla. 4th DCA 1975)
Kumar Corp. v Nopal Lines, Ltd, et al
462 So. 2d 1178, (Fla. 3d DCA 1985)
3
Corcoran v. Brody
347 So. 2d 689 (Fla. 4th DCA 1977)
Fladell v. Palm Beach County Canvassing Board
772 So.2d 1240 (Fla. 2000)
Greenwald v. Triple D Properties, Inc.
424 So. 2d 185, 187 (Fla. 4th DCA 1983)
Costa Bella Development Corp. v. Costa Development Corp.
441 So. 2d 1114 (Fla. 3rd DCA 1983)
Ginsberg v. Lennar Fla. Holdings, Inc.
645 So.2d 490, 494 (Fla. 3'd DCA 1994)
Development Group, Inc.
50 B.R. 588 (Bankr.S.D.Fla. 1985)
Downing v. First National Bank of Lake City,
81 So.2d 486 (Fla. 1955)
37 Fla. Jur. Mortgages and Deeds of Trust '240
Martinez v. Scanlon
582 So.2d 1167, 1170-71 (Fla. 1991
Major League Baseball v.Morsani
790 So. 2d 1071 (Fla. 2001)
4
Rollins v. Alvarez
792 So. 2d 695 (Fla. 5th DCA 2001)
Volusia County v. Aberdeen at Ormond Beach, L.P.
760 So. 2d 126 (Fla. 2000)
Progressive Exp. Ins. Co. v. McGrath Cmty. Chiropractic
913 So. 2d 1281, 1286 (Fla. 2d DCA 2005)
McLean v. JPMorgan Chase Bank, N.A.
No. 4D10-3429 (Fla. 4th DCA Feb. 8, 2012)
Sobel v. Mutual Dev. Inc.,
313 So. 2d 77 (Fla. 1 DCA, 1975)
Pepe v. Shepherd, 422 So. 2d 910 (Fla. 3 DCA 1982)
Margiewicz v. Terco Prop.
441 So. 2d 1124 (Fla. 3 DCA 1983)
Brown v. Snell
6 Fla. 741 (1856)
Tayton v. American Nat'l Bank
57 So. 678 (Fla. 1912)
5
Scott v. Taylor
58 So. 30 (Fla. 1912)
Young v. Victory
150 So. 624 (Fla. 1933)
Thomas v. Hartman
553 So. 2d 1256 (Fla. 5 DCA 1989)
Grier v. M.H.C. Realty Co
274 So. 2d 21 (Fla. 4 DCA 1973)
Mellor v. Goldberg
658 So. 2d 1162 (Fla. 2 DCA 1995)
Century Group Inc. v. Premier Fin. Services East L. P.
724 So. 2d 661 (Fla. 2 DCA 1999)
Evins v. Gainsville Nat'l Bank
85 So. 659 (Fla. 1920)
Case v. Smith
200 So. 917 (Fla. 1941)
Collins v. Briggs
6
123 So. 833 (Fla. 1929)
Miami Mtge. & Guar. Co. v. Drawdy
127 So, 323 (Fla. 1930)
So. Colonial Mtge. Co. v. Medeiros
347 So. 2d 736 (Fla. 4 DCA 1977)
Vance v. Fields
172 So. 2d 613 (Fla. 1 DCA 1965)
Sobel v. Mutual Dev. Inc.
313 So. 2d 77 (Fla. 1 DCA 1975)
Amacher v. Keel
358 So. 2d 889 (Fla. 2 DCA 1975)
7
TABLE OF STATUTES
§ 45.031, Fla. Stat. (2012)
§ 673.1031(1)(a), Fla. Stat.(2012)
§ 673.1031(1)(c), Fla. Stat.(2012)
§ 673.1031(1)(e), Fla. Stat.(2012)
§ 673.1041(1), Fla. Stat.(2012).
§ 673.1041(2), Fla. Stat.(2012)
§ 673.1041(5), Fla. Stat. (2012).
§ 673.1051(1), Fla. Stat.(2012)
§ 673.1051(3), Fla. Stat.(2012)
§ 673.1091(2), Fla. Stat.(2012)
§ 673.1101(1), Fla. Stat.(2012)
§ 673.2011(2), Fla. Stat.(2012)
§ 673.2014(1), Fla. Stat.(2012)
7§ 673.2031(1), Fla. Stat.(2012)
§ 673.2031(3), Fla. Stat.(2012)
§ 673.2041(1), Fla. Stat.(2012)
§ 673.3011, Fla. Stat.(2012)
§ 673.4121, Fla. Stat.(2012)
§ 673.4151, Fla. Stat.(2012)
§ 673, et. seq., , Fla. Stat.(2012)
8
STATEMENT OF THE CASE AND FACTS
This appeal is taken from the Circuit Court's decision to render SummaryFinal
Judgment against the Appellant. The Appellate Court of Florida has jurisdiction to
consider the issues raised in this appeal under authority of the Florida Rules of
Appellate Procedure, Rule 9.130 et seq. The nature of the case below was
Appellee's Complaint to foreclose the residential real property owned and occupied
by the Appellant, Jeffrey C. Hurt & Jacqueline M. Hurt. Appellant's First
Amended Answer challenged Appellee's standing in affirmative defenses and an
incorporated Summary Final Judgment against the Appellant On July 20*, 2012, a
hearing on the Appellee's Motion for Summary Final Judgment was held. The
Appellee offered in evidence the promissory note, the mortgage instrument and an
assignment of mortgage. Appellant's Response in Opposition to Appellee's
Motion for Summary Final Judgment which stipulated that this evidence was not in
dispute. Appellant contended that the dispute was as to what that evidence actually
proved - that being that Appellant was not entitled to enforce the promissory note
against Appellee. On July 20*, 2012, Circuit Judge granted Summary Final
Judgment of Foreclosure in Appellee's favor. Appellee made the following three
claims in it's Complaint: 1) "On or about June 8*, 2005, a promissory note was
executed and delivered in favor of Homefield Financial Inc., or Appellee's
assignor, in the original principal amount of $307,100.00." 2) "The Appellee was
9
assigned the mortgage in good standing and is known as the present owner and
constructive holder of the promissory note and Mortgage." and, 3) "The above-
described Note and Mortgage were assigned to Plaintiff. See attached as Exhibit
"A". Plantiff instituted a foreclosure action in the Palm Beach County Court date
stamped, November 1", 2007. See attached as Exhibit "B". On June 8* 2008 a
copy of the original note was filed and attached was an Allonge. See attached as
exhibit "C". The Allonge was neither dated nor notarized, attached 9 months post
filing. Pursuant to Rules 1.540(b)(3)(4), 1.210(a) and 1.140(b)(7) of the Florida
Rules of Civil Procedure because nothing has been established on the record that
the alleged assignment of mortgage and Allonge ever transferred interest in the
loan to Plaintiff, both are fraudulent and defective. And it is clear from the
promissory note and mortgage submitted as evidence, that a person other than
Plaintiff is the true owner of the claim sued upon and that Plaintiff is not the real
party in interest and is not shown to be authorized to maintain this foreclosure
action. The mortgage and the note show that Homefield Financial, Inc. is the
lender not Plaintiff. McLean v. JPMorgan Chase Bank, N.A., No. 4D10-3429 (Fla.
4th DCA Feb. 8, 2012) "While it is true that standing to foreclose can be
demonstrated by the filing of the original note with a special endorsement in favor
of the plaintiff, this does not alter the rule that a party's standing is determined at
the time the lawsuit was filed. See Progressive Exp. Ins. Co. v. McGrath Cmty.
10
Chiropractic, 913 So. 2d 1281, 1286 (Fla. 2d DCA 2005). Stated another way, "the
plaintiff's lack of standing at the inception of the case is not a defect that may be
cured by the acquisition of standing after the case is filed." Id. at 1285. Thus, a
party is not permitted to establish the right to maintain an action retroactively by
acquiring standing to file a lawsuit after the fact. Id. at 1286. On March 10*, 2011,
the Appellee filed the attachment of mortgage, the date of the assignment is June
19*, 2009. See attached as Exhibit "D". On May 31", 2011, Appellant filed Motion
to Dismiss "Lack of Debt Validation" which substantially denied the foreclosure
allegations for lack of standing . See attached as Exhibit "E". On July 20*, 2011,
the motion to dismiss was denied by Judge Lewis. On April 25*, 2012, Appellee
filed a Motion for Summary Final Judgment. See attached as Exhibit "F". In
support of the Motion for Summary Final Judgment, the Appellee relied solely
upon the promissory note, the Mortgage instrument and the assignment of
mortgage to support its' claim that: In this document the Appellant stipulated that
Appellee's evidence was authentic, uncontested and that there were no genuine
issues of material fact. The Sale date was set on January 14*, 2013. On January
11*, 2013, Defendant filed an Objection to Foreclosure Sale, Motion to Vacate
Certificate of Sale & Final Judgment, for Lack of Subject Matter Jurisdiction,
Fraud upon the Court Evidentiary Hearing Request was denied as untimely. Sale of
property to U.S. Bank National Association occurred January 14*, 2013 at 10:00
11
A.M.. To summarize, the plaintiff must prove that it had standing to foreclose
when the complaint was filed. See Country Place Cmty. Ass'n v. J.P. Morgan
Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) "The Court
lacked subject matter jurisdiction to proceed. Subject matter jurisdiction has never
been established on the record. The jurisdictional question can be raised at any
time and can never be time-barred. DeClaire v. Yohanan, 453 So. 2d 375 (Fla.
1984). In order for the Court to have subject matter jurisdiction there must exist (1)
a justiciable controversy (2) between adverse parties. Martinez v. Scanlon, 582
So.2d 1167, 1170-71 (Fla. 1991). Here the record does not show the Plaintiff and
Defendants are adverse parties or have a justiciable controversy between them.
Void judgments are those rendered by a court which lacked jurisdiction, either of
the subject matter or the parties. See: Wahl v. Round Valley Bank, 38 Ariz. 411,
300 P.955 (1931), Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146
P. 203 (1914), Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278
(1940). The Court did not have subject matter jurisdiction as such the final
judgment is void. A void judgment is one which from the beginning was complete
nullity and without any legal effect, Hobbs v. U.S. Office of Personnel
Management, 485 F.Supp. 456 (M.D. Fla. 1980). A void judgment is a nullity...
and is subject to collateral attack and may be stricken at any time. The passage of
time cannot make valid that which has always been void. Ramagli Realty v.
12
Craver, 121 So. 2d. 648 (Fla 1960) Subject Matter Jurisdiction fails in case of
Fraud upon the court, In re Village of Willowbrook, 37 Ill. App.3d 393 (1962).
Here the plaintiff procured an assignment signed by a Robo-Signer parading as an
employee of one company while working for a servicer of the Plaintiff, as well as
an Allonge to the note fabricated to show the interest transferred to the Trust while
both of these documents attest to the impossibility of that fact. Pursuant to Rules
1.540(b)(3)(4), 1.210(a) and 1.140(b)(7) of the Florida Rules of Civil Procedure
because nothing has been established on the record that the alleged assignment of
mortgage and Allonge ever transferred interest in the loan to Plaintiff, both are
fraudulent and defective. And it is clear from the promissory note and mortgage
submitted as evidence, that a person other than Plaintiff is the true owner of the
claim sued upon and that Plaintiff is not the real party in interest and is not shown
to be authorized to maintain this foreclosure action. The mortgage and the note
show that Homefield Financial, Inc. is the lender not Plaintiff. Florida law defines
those who are entitled to enforce a negotiable instrument as either a "holder" of the
instrument, a non-holder in possession who has the rights of a holder or a person
not in possession who is entitled to enforce it as a lost instrument. (§ 673.3011,
Fla. Stat. (2009)) Florida law goes so far as to permit a person to be entitled to
enforce an instrument even though that person is not the owner of the instrument or
is in wrongful possession of the instrument. However, the subject promissory note
13
is more restrictive in its' in a mortgage loan, there is only one negotiable
instrument, and that is the promissory note. Neither the mortgage instrument nor
the assignment of mortgage are "negotiable instruments" as the term "instrument"
as used in § 673, Fla. Stat. (2009), et. seq., only means a "negotiable instrument".
(§ 673.1041(2), FLA. STAT. (2009)) characterization of who may enforce it
because the subject promissory note and the subject mortgage instrument together
were designed to have been sold in fractional interests on the secondary market.
The subject mortgage instrument provides "The Note or a partial interest in the
Note (together with this Security Instrument)can be sold one or more times without
prior notice to Borrower." (R. I/77, para. Having multiple parties attempting to
enforce a single promissory note could destroy the entire secondary market system
in mortgages. In order to prevent that from happening, the subject promissory
note does not make a mere possessor of it a "holder", rather, one becomes a
"holder" of the subject promissory note only upon "transfer" of the promissory
note along with the right to enforce it. The subject promissory note provides "The
Lender or anyone who takes this Note by transfer and who is entitled to receive
payments under this Note is called the "Note Holder". 1. This is consistent with
Florida Statutes § 673.2031(1) which provides that an instrument is transferred
when it is delivered by a person other than its issuer for the purpose of giving to
the person receiving delivery the right to enforce the instrument. 2. Florida
14
Statutes section 673.2041 (1)provides that the term "endorsement" means a
signature, other than that of a signer as maker, drawer, or acceptor, that alone or
accompanied by other words is made on an instrument for the purpose of
negotiating the instrument, restricting payment of the instrument, or incurring
endorser's liability on the instrument. Appellant is the "maker" of the promissory
note pursuant to Florida Statutes section 673.1031(1)(e) which provides that
"Maker" means a person who signs or is identified in a note as a person
undertaking to pay." The terms "drawer" and "acceptor' do not apply in this case
as those terms only apply to a "draft" pursuant to Florida Statutes section
673.1031(1)(a) & (c). Florida Statutes section 673.1041(5) provides that "An
instrument is a "note" if it is a promise and is a "draft" if it is an order." 3. For the
purpose of determining whether a signature is made on an instrument, a paper
affixed to the instrument is a part of the instrument. (§673.2041(1), Fla. Stat.
(2009)) "An Allonge is a piece of paper annexed to a negotiable instrument or
promissory note, on which to write endorsements for which there is no room on the
instrument itself. Such must be so firmly affixed thereto as to become a part
thereof." BLACK'S LAW DICTIONARY (6* ed.1990). Florida's Uniform
Commercial Code does not specifically mention an Allonge, but notes that "[f]or
the purpose of determining whether a signature is made on an instrument, a paper
affixed to the instrument is part of the instrument."§ 673.2041(1), Fla. Stat.
15
(1995)). Booker v. Sarasota, Inc., 707 So.2d 886 (Fla.App. 1 Dist., 1998) In
Florida, the prosecution of a foreclosure action is by the owner and holder of the
mortgage and the note. Appellee is not entitled to maintain this action in which it
seeks to foreclose on a note which Appellee does not own. Your Construction
Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975) Appellee, alleges that it
owns and holds the subject note and mortgage. There is no evidence or testimony
supporting this. In fact, all evidence and testimony specifically and conclusively
demonstrates the opposite. Rule 1.210(a) of the Florida Rules of Civil Procedure
provides, in pertinent part: Every action may be prosecuted in the name of the real
party in interest, but a personal representative, administrator, guardian, trustee of
an express trust, a party with whom or in whose name a contract has been made for
the benefit of another, or a party expressly authorized by statute may sue in that
person's own name without joining the party for whose benefit the action is
brought... Plaintiff in this action meets none of these criteria. Standing requires that
the party prosecuting the action have a sufficient stake in the outcome and that the
party bringing the claim be recognized in the law as being a real party in interest
entitled to bring the claim. This entitlement to prosecute a claim in Florida courts
rests exclusively in those persons granted by substantive law, the power to enforce
the claim. Kumar Corp. v Nopal Lines, Ltd, et al, 462 So. 2d 1178, (Fla. 3d DCA
1985) No Florida case holds that a separate entity can maintain suit on a note
16
payable to another entity unless the requirements of Rule 1.210(a) of the Florida
Rules of Civil Procedure and applicable Florida law are met. Corcoran v. Brody,
347 So. 2d 689 (Fla. 4th DCA 1977)
Fla.R.Civ.P. Rule 1.130(a) requires a Plaintiff to attach copies of all bonds, notes,
bills of exchange, contracts, accounts, or documents upon which action may be
brought to its complaint. Plaintiff has failed to attach any document that supports
its pleadings. As a result, although Plaintiff claims to be the owner of the
promissory note, the promissory note submitted as evidence at the commencement
of the action conflicts with this allegation, it shows that Homefield Financial is the
owner. The Allonge fails to transfer interest to plaintiff. It did not surface until
eight months after filing the complaint, it is not dated, not notarized and does not
show the required chain of endorsement form originator to seller to depositor to
trust. These requirements are set by the controlling Pooling and Servicing
agreement of the Plaintiff's Trust. See Pooling and Servicing Agreement article II.
The assignment was executed by robo-signer Bill Koch, representing himself as
MERS nominee when in fact he was an employee of the servicer. Execution date is
after the date of the filing of the complaint and after the closing date of the Trust,
and also after the closing of the lender's business. Such an assignment is
fraudulent, invalid and violates the PSA. In addition this loan was in default at the
date of the assignment, it is a nonperforming mortgage that wouldn't be accepted
17
or be part of the loan pools owned by the trust; such loans are prohibited by the
PSA. As such the assignment fails to transfer any interest in the note or mortgage
to plaintiff.
When exhibits are inconsistent with Plaintiff's allegations of material fact as to
who the real party in interest is, such allegations cancel each other out. Fladell v.
Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v.
Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella
Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA
1983). As such, exhibits attached to complaint or other pleadings must agree with
allegations of the complaint, and where the two do not agree, the exhibits control.
See also, Geico Gen. Ins.Co. v. Graci, 849 So.2d 1196 (Fla. 4* DCA 2003) and
Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494 (Fla. 3'd DCA 1994)
(where exhibits contradict complaint allegations, plain meanings of exhibits
control). Harry Pepper & Associates at 247. Plaintiff is not the real party in interest
and is not shown to be authorized to bring this action. In re: Shelter Development
Group, Inc., 50 B.R. 588 (Bankr.S.D.Fla. 1985) [It is axiomatic that a suit cannot
be prosecuted to foreclose a mortgage which secures the payment of a promissory
note, unless the Plaintiff actually holds the original note, citing Downing v. First
National Bank of Lake City, 81 So.2d 486 (Fla. 1955)]; Your Construction Center,
Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975), See also 37 Fla. Jur. Mortgages
18
and Deeds of Trust '240 (One who does not have the ownership, possession, or the
right to possession of the mortgage and the obligation secured by it, may not
foreclose the mortgage).
Furthermore, the affidavit of support for the final judgment is defective on its face,
cannot determine the identity of the affiant. Notary did not comply with Fla. Stat,
117.5, as the the jurat, it does not show how the notary ascertained the identity of
the affiant. Plaintiff's pleadings fail to contain sufficient facts to establish who the
Plaintiff is and its relationship to Defendant and to the claim for foreclosure of the
subject promissory note and mortgage. The record also fails to allege facts
sufficient to determine the standing of Plaintiff. In order for the Court to have
subject matter jurisdiction there must exist (1) a justiciable controversy (2)
between adverse parties. Martinez v. Scanlon, 582 So.2d 1167, 1170-71 (Fla.
1991). Here the record does not show the Plaintiff and Defendants are adverse
parties or have a justiciable controversy between them.
19
STANDARD ON APPEAL
The standard of review for summary judgment is de novo. Major League Baseball
v.Morsani, 790 So. 2d 1071 (Fla. 2001); Rollins v. Alvarez, 792 So. 2d 695 (Fla.
5th DCA 2001); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d
126 (Fla. 2000). In reviewing a summary judgment, the Court must determine
whether there is any "genuine issue as to any material fact" and whether"the
moving party is entitled to judgment as a matter of law." Fla. R. Civ. P.1.510(c).
Issues of fact are "genuine" only if a reasonable jury, considering the evidence
presented, could find for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). Generally, "[t]he party moving for summary judgment
has the burden to prove conclusively the nonexistence of any genuine issue of
material fact." City of Cocoa v. Leffler, 762 So. 2d 1052,1055 (Fla. 5tbDCA
2000). The evidence contained in the record, including supporting affidavits, must
be considered in the light most favorable to the non-moving party, and if the
slightest doubt exists, summary judgment must be reversed. Krol v. City of
Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001).
20
ARGUMENTS FIRST ARGUMENT THE APPELLEE PRESENTED
EVIDENCE THAT IT WAS NOT ENTITLED TO ENFORCE THE
PROMISSORY NOTE IN QUESTION
Every mortgage loan is composed of two documents - the note instrument and the
mortgage instrument. No matter how much the mortgage instrument is acclaimed
as the basis of the agreement, the note instrument is the essence of the debt. Sobel
v. Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA, 1975); Pepe v. Shepherd, 422 So.
2d 910 (Fla. 3 DCA 1982); Margiewicz v. Terco Prop., 441 So. 2d 1124 (Fla. 3
DCA 1983). The promissory note is evidence of the primary mortgage obligation.
The mortgage is only a mere incident to the note. Brown v. Snell, 6 Fla. 741
(1856); Tayton v. American Nat'l Bank, 57 So. 678 (Fla. 1912); Scott v. Taylor, 58
So. 30 (Fla. 1912); Young v. Victory, 150 So. 624 (Fla. 1933); Thomas v.
Hartman, 553 So. 2d 1256 (Fla. 5 DCA 1989). The mortgage instrument is only
the security for the indebtedness. Grier v. M.H.C. Realty Co, 274 So. 2d 21 (Fla. 4
DCA 1973); Mellor v. Goldberg, 658 So. 2d 1162 (Fla. 2 DCA 1995); Century
Group Inc. v. Premier Fin. Services East L. P., 724 So. 2d 661 (Fla. 2 DCA 1999)
From the evidence admitted in Court, it is impossible to know whether Appellee
was ever a "holder" of the promissory note - as that term is defined by the subject
promissory note. Additionally, since this promissory note was payable to
Homefield Financial Inc., before it could be enforced against the Appellant it had
21
to be a conforming loan not in arrears. There was no evidence presented of this ,
in court although the opposite was proven. Therefore, the evidence presented
proved that Appellee was not entitled to enforce the promissory note against
Appellant.
SECOND ARGUMENT MERS DID NOT PASS AN ENFORCEABLE
INTEREST IN THE PROMISSORY NOTE TO APPELLEE
The note is the instrument of concern in all assignment situations. There is an old
maxim "the mortgage follows the note". Evins v. Gainsville Nat'l Bank, 85 So.
659 (Fla. 1920); Case v. Smith, 200 So. 917 (Fla. 1941) The note is evidence of
the primary mortgage obligations or the debt. The assignment of the note carries
with it the mortgage and its rights, even though the mortgage instrument has not
been assigned either orally or in writing. Collins v. Briggs, 123 So. 833 (Fla.
1929); Miami Mtge. & Guar. Co. v. Drawdy, 127 So. 323 (Fla. 1930); So. Colonial
Mtge. Co. v. Medeiros, 347 So. 2d 736 (Fla. 4 DCA 1977) 23The mortgage, as
evidenced by the mortgage instrument, is only a mere incident to the debt.
Therefore, the mortgage instrument is of lesser significance. Because the
assignment of the note is an imperative act as to the transferring of the mortgagee's
right, the assignment of the mortgage instrument without the note is an ineffective
22
assignment. Vance v. Fields, 172 So. 2d 613 (Fla. 1 DCA 1965); Sobel v. Mutual
Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA 1975); Amacher v. Keel, 358 So. 2d 889
(Fla. 2 DCA 1975) In the instant case, the assignment of mortgage claims that it
assigns the beneficial interest in both the note instrument and the mortgage
instrument to Appellee. However, the note instrument was bifurcated from the
mortgage instrument and MERS did not have an interest in the Note that it could
assign. MERS act of assigning the mortgage instrument was invalid as it held no
beneficial interest in the mortgage instrument for two reasons: 1) a security
instrument, apart from the promissory note giving rise to the debt has no value
because there is no debt by which it secures payment; and 2) MERS had no
beneficial interest in the mortgage instrument that it could assign. Additionally, the
subject mortgage instrument states that it can only be transferred with the sale of
the note - and not the other way around where the sale of the mortgage instrument
would include the note. The subject mortgage instrument provides "The Note or a
partial interest in the Note (together with this Security Instrument) can be sold one
or more times without prior notice to Borrower." (R. I/77, para. 20) In this case,
the only relevant transfer that could occur is a transfer of the promissory note,
which would include a transfer of the 25mortgage instrument if ownership of that
instrument were not bifurcated from the ownership of the promissory note. So an
assignment of the mortgage instrument from MERS to Appellee would not transfer
23
the promissory note to Appellee. Appellant's Opposition to the Appellee's Motion
for Summary Final Judgment included an affidavit of the contents of the MERS
website. The Opposition stated in relevant part: MERS has nothing to transfer by
an assignment. MERS own website listed "MERS Recommended Foreclosure
Procedures for FLORIDA". In this document MERS states that it is not the
beneficial owner of the promissory note. This document states: MERS stands in
the same shoes as the servicer to the extent that it is not the beneficial owner of the
promissory note. An investor, typically a secondary market investor, will be the
ultimate owner of the note. In the consolidated cases of In re Foreclosure Cases,
521 F. Supp. 2D 650, 653 (S.D. Oh. 2007), a standing challenge was made and the
Court found that there was no evidence of record that New Century ever assigned
to MERS the www.mersinc.orWfiledownload.aspx?id=176&table=ProductFile26
promissory note or otherwise gave MERS the authority to assign the note.
Beginning with this case, courts around the country started to recognize that MERS
had no ownership in the notes and could not transfer an interest in a mortgage upon
which foreclosure could be based. In LaSalle Bank NA v. Lamy, 824 N.Y.S.2d
769 (N.Y. Supp. 2006), the Court denied a foreclosure action by an assignee of
MERS on the grounds that MERS itself had no ownership interest in the
underlying note and mortgage. In the case of In re Mitchell, Case No. BK-S-07-
16226-LBR (Bankr.Nev., 2009), the Court stated "In order to foreclose, MERS
24
must establish there has been a sufficient transfer of both the note and deed of
trust, or that it has authority under state law to act for the note's holder." (At page
9) The Court found that MERS has no ownership interest in the promissory note.
The Court found that though MERS attempts to make it appear as though it is a
beneficiary of the mortgage, it in fact is not a beneficiary. The Court stated "But it
is obvious from the MERS' "Terms and Conditions" that MERS is not a
beneficiary as it has no rights whatsoever to any payments, to any servicing rights,
or to any of the properties secured by the loans.
SUMMARY OF THE ARGUMENTS
When exhibits are inconsistent with Plaintiff's allegations of material fact as to
who the real party in interest is, such allegations cancel each other out. In order for
the Court to have subject matter jurisdiction there must exist a justifiable
controversy between adverse parties. Ownership of the promissory note and the
mortgage instrument was non negotiable as a non performing promissory note was
not a bearer instrument. Rather, it was made payable to the lender who is a
specifically identified as - U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE ON BEHALF OF THE HOLDERS OF THE HOME EQUITY ASSET
TRUST 2005-2008 HOME EQUITY PASS-THROUGH CERTICACATES,
SERIEST 2005-8 years after the filing of this suit - and the mortgage instrument
25
named MERS as the mortgagee, for Homefield Financial Inc. Neither the
promissory note nor the mortgage instrument granted MERS an interest in the
promissory note, instead, Homefield Financial Inc. retained ownership in the
promissory note being a non-performing loan. The right to foreclose is dependent
upon there being an enforceable promissory note. An assignment of mortgage
from MERS to Appellee granted Appellee all of the interests that MERS had in the
promissory note and the mortgage instrument. By the assignment of mortgage,
MERS could not convey a greater interest to Appellee than that which it already
held. Since MERS had no enforceable interest in the promissory note, it conveyed
no enforceable interest in the promissory note to the Appellee. Even if MERS was
an agent of Homefield Financial Inc. with authority to enforce the promissory
note, no evidence of such authority was presented to the Circuit Court. Without
an interest in the promissory note, or without evidence of authority to enforce the
promissory note against Appellant, Appellee had no standing to foreclose and
summary judgment was improper
26
CONCLUSION
WHEREFORE, the Circuit Court's judgment should be set aside and the
matter remanded.
Respectfully Submitted,
JEFFREY C. HURT, pro se437 Ebbtide DriveNorth Palm Beach, F1 33408(561) 632-2370 Phonejeffhurt22@yahoo.com email
By:
Defendant
27
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via U.S. Mail to the following Attorneys for Plaintiff
Weitz & Schwartz, P.A., 900 S.E. 3'd Avenue, Ste. 204, Ft. Lauderdale, FI 33316
Telephone (954) 468-0016
Anthony Ryan Smith P.A., 2311 Highland Avenue, South Birmingham, Al 35205
Telephone (205) 930-5100
Kathryn I Kasper P.A., 1115 E Gonzalez St., Pensacola, El 32503
Telephone (950) 462-1500 (850) 462-1599
Matthew R Feluren P.A., 200 East Broward Blvd. Ste. 900, Ft Lauderdale, FI 33301Sirote & Permutt, P.C.
Clerk Palm Beach PBC Courthouse 205 N. Dixie Hwy, West Palm Beach, FI 33401Sharon R. Bock, Clerk
Telephone (561) 355-7845 (561) 355-4643
Hon. Diana Lewis 205 N. Dixie Hwy, West Palm Beach, FL 33401
Palm Beach County Courthouse
5th District Florida Court of Appeals 1525 Palm Beach Lakes Blvd. West Palm
Beach, FI 33401
JEFFREY C. HURT, pro se437 Ebbtide DriveNorth Palm Beach, F1 33408(561) 632-2370 Phoneeffhurt22@yahoo com email
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