March 17, 2015
The Palm Beach County, Florida Circuit Court has denied a Motion for Summary Judgment in a foreclosure filed by New York Community Bank. The homeowner is represented by Jeff Barnes, Esq. who prepared the formal response to the MSJ and argued the matter in court.
The case involves two separate alleged “allonges” on separate sheets of paper, which NYCB attempted to equate to “endorsements” by calling them “endorsement allonges”. There is no endorsement on the Note itself, and there are no dates on the “allonge” documents. Florida case law has specific requirements for an allonge to be effective, which requirements were not demonstrated by NYCB.
NYCB also took the position that one of the stamps on one of the “allonge” papers “was not a true endorsement” with reference to an argument that AmTrust Bank remained in possession of the original Note, which NYCB claimed to have inherited as a result of a purchase of assets from the FDIC as receiver for the failed AmTrust (which allegedly acquired the Note from Ohio Savings Bank which allegedly acquired the Note from the original lender). However, NYCB produced no evidence that the specific loan the subject of the case was purchased, with the Schedule of Certain Assets Purchased being blank.
The “Affidavits” filed by NYCB contained no personal knowledge as to the alleged transfers of the Note from the original lender (First Florida Mortgage Network, Inc.) to either Ohio Savings Bank, or AmTrust, or the FDIC, or the Federal Home Loan Bank of Cincinnati (which name appeared on one of the “allonge” documents).
Florida law provides that if there are issues as to an undated stamp which are timely and properly raised, the homeowner is entitled to an evidentiary hearing on the issues and under these circumstances summary judgment is improper and will be reversed on appeal.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com